The primary defense in a Personal Injury negligence case, like a car accident or slip and fall case, is that the injured person contributed to causing the accident.  In Pennsylvania, this is called Comparative Negligence.  The defense, if proven in court, can reduce the compensation owed to a victim of an accident, or completely eliminate the victim’s ability to recover compensation. 

History of the Comparative Negligence Defense

Before 1976, Negligence law in Pennsylvania recognized the defense of Contributory Negligence.  Under a Contributory Negligence defense, if a defendant could prove that the injured party was negligent in any way and that negligence contributed to causing the accident, the injured party would not be able to recover any compensation.  Instead, the injury party’s Contributory Negligence completely barred any recovery.

Many states, including Pennsylvania, felt that Contributory Negligence was too harsh a rule becuase even if the defendant was much more responsible for the accident compared to the injured party, the injured party still could not recover any compensation.  In the most extreme case, even if the jury found that the defendant was 99 percent responsible for the accident and the injured party was 1 percent responsible, Contributory Negligence would preclude the injured party from any compensation.

The Comparative Negligence Rule 

In 1976, the Pennsylvania legislature adopted a Comparative Negligence statute which governs Negligence cases involving death, personal injuries or property damages.  The Comparative Negligence statute applies to all Personal Injury cases alleging Negligence, including car, truck and motorcycle accident cases, slip and fall cases and other injury cases.

Not surprisingly, the Comparative Negligence statute “compares” the negligence of the injured party and the defendant and allows recovery in some situations, while reducing the injured party’s compensation to account for his role in causing the accident.

Pennsylvania’s Comparative Negligence statute states that the fact that an injured party may have been neglient shall not bar recovery where the negligence was not greater than the negligence of the defendant, but any damages sustained shall be diminished in proportion to the amount of negligence attributable to the injured party.

There are two parts to the Comparative Negligence defense.  First, there is a greater than 50 percent rule.  If the injured party was greater than 50 percent responsible for the accident, he cannot recover any compensation.  If he is equal to or less than 50 percent responsible, he can recover.  Second, the injured party’s compensation must be reduced by the percentage of his responsibility for the accident.

At the end of a Personal Injury trial, the judge will instruct the jury that they must decide whether the defendant was negligent and, if so, whether the negligence caused damages to the injured party.  The jury must also decide whether the injured party was negligent and contributed to causing the accident.

If the jury determines that both the defendant and the injured party were negligent and contributed to causing the accident, then the judge will instuct them to assign percentages of responsibility to each so that they add up to 100 percent, like 50 percent defendant/50 percent injured party, 80/20, 75/25, 40/60 etc.  Then, the jury is instructed to award money for the injured party’s damages and losses.

After the verdict is reached, the injured party cannot recover any compensation if the jury found him more than 50 percent responsible for the accident.  If the jury found the injured party 50 percent responsible or less, then the injured party can recover, but the judge reduces the compensation award in proportion to the injured party’s percentage of Comparative Negligence.  For example, if the jury found the injured party 50 percent responsible and awarded $100,000, then the award would be reduced by 50 percent to $50,000.

Comparative Negligence is the most common defense in Personal Injury cases.  Pennsylvania’s rule of Comparative Negligence allows an injured party to recover compensation if he is not more than 50 percent responsible for an accident, but reduces his recovery by his percentage of fault.  The rule attempts to be fair to both injured parties and defendants by holding each of them responsible for their role in causing an accident. 

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

Sometimes accidents just happen - car crashes, slips and falls, bad outcomes from medical treatment and other mishaps.  Not all accidents create legal liability. How do you know when someone is legally responsible for an accident?  A legal concept called “Negligence” determines when an accident can result in a legitmate lawsuit.

There are four elements which must be established in order to have a viable Negligence claim: (1) A legal Duty to act carefully; (2) a Breach of the Duty to act carefully; (3) a causal link between the failure to act carefully and some damages (Causation); and (4) actual losses or damages resulting from the failure to act carefully (Damages).

Duty

A Duty is an obligation required by the law to act in a careful and reasonable manner.  For example, the driver of a car has a legal duty to drive carefully, a store  owner has a duty to keep his property in a reasonably safe condition for its patrons and a medical doctor has a legal duty to have the knowledge and exercise the skill that another reasonably careful doctor would under the same circumstances.  In these examples, each person - the driver, the store owner and the doctor - has a legal Duty to be careful and can be held legally liable for not being careful.  On the other hand, if I see someone who is about to get robbed, I have no legal Duty to warn or help that person and cannot be held liable for failing to act.

Breach

Breach of Duty is a failure to exercise reasonable care.  Stated otherwise, Breach of Duty is doing something that a reasonably careful person would not do, or failing to do something that a reasonably careful person would do.  Examples of Breach of Duty would include the following:  driving 75 miles per hour in a 45 zone; a driver turning around to talk to a friend in the back seat while driving in heavy traffic;  a business owner allowing a pothole in a parking lot to go unrepaired for 6 months; or a surgeon failing to remove a sponge from a patient during surgery.

Causation

Liability for Negligence requires a close causal relationship between the Breach of a Duty and some actual loss which results.  If the Breach of Duty contributes to causing and accident and losses, then there will be legal liability.  However, if something else caused the losses, there can be no liability.  For example,  if someone was driving drunk but the other driver caused an accident by running a red light, then even though the first driver was drunk, he was not Negligent and legally liable becuase the accident was not his fault. 

Damages

In order to have a case for Negligence, actual losses or damages must result from the accident.  There must be some actual injury to the victim.  The fact that “someone could have been hurt” is not enough to create legal liability.  Examples:  a driver rear ends your car,  but your car is not damaged and you are not injured; someone slips and falls on snow piled up on the sidewalk, but sustains no injuries; or an Emergency Room doctor fails to diagnose a heart attack, but a family doctor does hours later and the delay in diagnosis causes no injuries.

Sometimes accidents just happen and nobody is at fault.  Other times, accidents are caused by the Negligence of another and there are legal consequences.  The purpose of the law of Negligence is to make sure that a viable lawsuit does not arise in every situation where something bad happens.  Instead, the courts should only be involved when someone had a legal Duty to be careful, Breached that Duty and Caused actual Damages.

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

Having already addressed issues involving choosing Liability Coverage and First Party Coverage, as well as making the Full Tort or Linited Tort election, I will now discuss my last automobile insurance topic in this four part series:  Uninsured and Underinsured Motorist Coverage. 

Since there are countless vehicles traveling the Pennsylvania roads every day with either no Liability Coverage or minimal Liablity Coverage, it is important for you to consider purchasing substantial Uninsured and Underinsured Motorist Coverage.

In the event that you are the victim of an accident caused by a driver with little or no insurance, it is likely that you will need to turn to your own automobile insurance policy to get fair compensation for your injuries and damages.  In such situations, you are protected only if you have purchased a sufficient amount of Uninsured and Underinsured Motorist Coverage.

Uninsured Motorist Coverage (UM) provides protection for an accident caused by a driver of a vehicle who has no insurance or who leaves the scene of an accident and cannot be located - a hit-and-run driver.  Underinsured Motorist Coverage (UIM) provides protection for an accident caused by a driver of a vehicle who has Liability Coverage, but not enough coverage to pay for the damages resulting from the accident, such as medical bills, lost wages and pain and suffering.

In Pennsylvania, all automobile insurance companies must offer both UM and UIM coverage and must obtain signed waivers if UM or UIM coverage is rejected by someone purchasing insurance.  This is coverage on your own policy that you pay for so that you and the memebers of your family who live with you will be protected in the event that you are injured by an irresponsible driver who has littele or no insurance.  Since UM/UIM coverage is very important to have to protect you from drivers with little or no insurance, it is advisable to carry at least $100,000 of UM/UIM coverage, if not more.

In addition to choosing the amount of UM/UIM coverage, you are also given the option to “stack” your coverage if you insure more than one vehicle on your policy.  “Stacking” multiplies your coverage amount by the number of vehicles insured on the policy.  For example, if you stack $100,000 of coverage on a policy covering three vehicles, you will have $300,000 of coverage available if you are the victim of an accident caused by an uninsured or underinsured driver ($100,000 X 3 vehilcles = $300,000 of UM/UIM Coverage).  Because stacking coverage is relatively inexpensive, it is a good idea to consider it for multi-vehicle policies.

In the event that you or a relative who lives with you is involved in an accident caused by an uninsured or hit-and-run driver, you are able to seek compensation for your damages (medical bills, lost wages and pain and suffering) from your own UM coverage.  Your recovery can be up to the amount of your UM coverage. 

In addition, if you or a resident relative is injured by a driver who has insurance, but not enough to cover all of the damages, you can file a claim for UIM coverage with your own insurance company to make up the difference between the responsible party’s insurance coverage and your damages.  For example, if the responsible driver had $15,000 and your damages were $100,000, you could make a UIM claim for $85,000 to make up the difference.  Again, however, your own insurance company is only required to pay up to the limits of your UIM coverage. 

To be adequately covered in the event of an accident, I strongly recommend that you consider purchasing UM/UIM Coverage in substantial amounts and that you stack coverage if you have a multi-vehicle policy. 

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

In the first two parts of this four part series on purchasing automobile insurance, I discussed Liability and First Party Coverage.  In this part, I explain the critical selection of a Tort Option, Full Tort or Limited Tort.

Pennsylvania’s Motor Vehicle Financial Responsibility Law provides that consumers purchasing automobile insurance must make a choice of Tort Options - either Full Tort or Limited Tort.  Although your insurance premiums are lower if you select Limited Tort rather than Full Tort, you sacrifice legal rights by choosing Limited Tort.

Full Tort

Full Tort is an election made on your automobile insurance policy which allows you and the members of your household to seek compensation for Economic and Non-Economic damages sustained in a motor vehicle accident which was the fault of another driver.  Economic damages would include things like medical bills, lost wages, funeral bills or other out-of-pocket costs caused by an accident.  Non-Economic damages would include more intangible damages such as compensation for pain and suffering, emotional distress, embarrassment and the loss of the pleasure gained from things that can no longer be done due to injury.

Limited Tort

Limited Tort is an election made on your insurance policy which allows recovery for Economic damages, but usually prohibits you and members of your household from making any claim for Non-Economic damages unless a “serious injury”  has occurred.  The law defines “serious injury” as “a personal injury resulting in death, serious impairment of a bodily function or permanent serious disfigurement.”  Although the term “death” is self-explanatory and determining what constitutes “permanent and serious disfigurement” is not too difficult, the Pennsylvania couts have struggled with the issue of what qualifies as a “serious impairment of a bodily function.”  To date, the courts have been reluctant to find that a “serious impairment of a bodily function” exists absent a long-lasting and seriously disabling injuries.  Accordingly, if you have selected Limited Tort, it is often very difficult to pursue a claim for Non-Economic damages, even for injuries that linger on painfully for months.

Making Your Choice

Choosing a Tort Option - Full Tort or Limited Tort - is an important decision because it has a substantial impact on your legal rights when you are involved in an accident caused by another driver.  Choosing Limited Tort allows you to save money on insurance premiums, but usually precludes you from recovering Non-Economic damages unless the accident causes very serious, long-lasting injuries.  The Full Tort option is more expensive coverage, but you do not waive any legal rights to seek compensation for injuries.

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

In my practice, I find that it is common for my clients to have only a limited understanding of what their automobile insurance covers until they have actually been involved in an accident.  Frequently, my clients are not happy about their coverage but, by then, it’s too late to help them because the accident has already happened.

My goal in this four part series is to provide a brief explanation of automobile coverage to assist consumers with the important process of selecting proper coverage.  In the first part, I explained Liability Coverage.  In this part, I deal with First Party Coverage.

In Pennsylvania, there are several types of coverage that protect you regardless of who is at fault for an accident.  This coverage, called First Party Coverage, covers medical bills, lost wages, accidental death and funeral expenses arising out of accidents involving automobiles.

Pennsylvania law requires you to carry at least $5,000 per person of medical coverage.  In the event that you are injured in an accident, your policy will cover your medical treatment, regarless of who was at fault for the accident.  Although the minimum required coverage is $5,000, coverage in excess of that amount can be purchased and is relatively inexpensive.  With automobile insurance, unlike health insurance, there are no deductibles or co-pays for medical treatment. 

Since it is easy to foresee that an accident could result in injuries requiring more that $5,000 worth of medical treatment, it is advisable to consider having more than minimal coverage, particularly if you have no health insurance or high deductibles or co-pays in your plan.

First Party wage loss coverage is not mandatory, but can be purchased.  Lost wage coverage often pays 80 percent of lost gross income up to a maximum monthly amount and maximum benefit amount.  Purchasing lost wage coverage is prudent, particularly if you have no other short or long term disability coverage.

Accidental death and funeral benefits again, while not mandatory, are other types of coverage worth considering when purchasing automobile insurance.  Like other First Party Coverage, they are paid regardless of who is responsible for an accident.  Accidental death and funeral coverage can be very helpful, especially if you have little or no life insurance.

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

You are driving through an intersection when, suddenly, you hear the screech of tires and feel another car crash into yours.  Whether the accident was your fault or the other driver’s fault, the decisions which you made when you purchased or renewed your automobile insurance months before will significantly impact how the accident will effect your life.  

In this four part series, I will give you a Personal Injury Lawyer’s Guide to Purchasing Automobile Insurance.  This first part deals with Bodily Injury and Property Damage Liability Coverage which protects you from claims from other parties concerning accidents that are your fault.  

Under Pennsylvania law, you are required to carry Bodily Injury Liability Coverage of  at least $15,000/$30,000.  What that means is that in an accident that is your fault, you must have coverage of at least $15,000 for each person injured up to a cap of $30,000 total for multiple people injured in an accident.  So, if you injure one person and have the minimum Liability coverage,  your insurance company would be obligated to compensate the injured person up to $15,000.  If you injure multiple people, your insurance company would be obligated to pay out up to $30,000 in total.    So, if three people were hurt, they could claim compensation from your insurance company of up to $15,000 each and a total of $30,000.  

In addition to being required to have Bodily Injury Coverage, you are also required to have Property Damage Coverage of at least $5,000. Property Damage coverage pays for damages which you cause other than injuries to people, such as damages to other vehicles, fences, road signs, buildings, etc.  

It is often advisable to carry substantially more that the minimum amount of coverage required by law.  It is certainly foreseeable that the $15,000 coverage for any one person and $30,000 coverage for any one accident would be insufficient to satisfy a claim for serious bodily injuries to one or more persons.  Similarly, a Property Damage claim could easily exceed the $5,000 of minimal coverage.

In the event that either Bodily Injury or Property Damage caused by an accident exceeds the amount of insurance coverage, the injured people could sue you and try to collect from your personal assets to recover the damages that are in excess of your insurance.  For example, if you cause an accident, only have a $15,000/$30,000 Bodily Injury insurance policy and the injuries to one person require compensation of $100,000, that injured person could seek compensation of $85,000 from your personal assets.

Because of this possibility, it is important to consider purchasing substantially more than the minimum coverage required by law.  People with moderate amounts of personal assets should consider having at least a $100,000/$300,000 Bodily Injury Coverage and Property Damage Coverage of at least $25,000.  High asset individuals should consider higher coverage and talk to their insurance agent about an “Umbrella” liability policy which would provide liability coverage for automobile accidents or other accidents above and beyond the coverage in an automobile insurance policy.  

From a legal standpoint it is advisable to have enough insurance coverage so that, if you cause a serious accident, an insurance company will pay the victims, rather that the money coming from your personal assets.

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

In Part One, I described the pre-trial stages of a Lawsuit, including Pleadings, Discovery and Motion for Summary Judgment.  In Part Two, you will learn about both the Arbitration and Trial Stages of a Lawsuit. 

Arbitration

In Pennsylvania, if the plaintiff is seeking money damages of less than $50,000, the Lawsuit proceeds to mandatory Arbitration, rather than directly to Trial in front of a judge or jury.  The procedure involved in an Arbitration is similar to that of a Trial.  An Arbitration includes Opening Statements, Testimony and Evidence and Closing Arguments.  However, a panel of three local attorneys, rather than a judge or jury, decides the outcome of the case.  After the Arbitrators rule, either party can appeal the decision and the case proceeds to Trial in front of a judge or jury.

Trial

Both appeals from Arbitration and cases in which the Plaintiff seeks more than $50,000 result in Trials.  Depending on the preference of the parties, the Trial can be decided by a judge or a jury.  There are generally six phases of a jury Trial:  (1) Jury Selection; (2) Opening Statements; (3) Testimony and Evidence; (4) Closing Arguments; (5) Jury Charge; and (6) Verdict.

In a jury Trial, the first phase of the Trial begins with Jury Selection.  A pool of jurors, usually about 50 is brought into the courtroom and each juror has a number, from 1 to 50.  Then, the attorneys or the judge question the jurors to determine whether they know any of the parties, attorneys or witnesses or whether they have had and experiences or have any strong feelings on certain issues which would not allow them to be unbiased and fair in deciding the case.  Once the questioning is completed, each attorney can ask that specific jurors be stricken from the pool due to some disclosed bias or prejudice.   After the judge rules on these “for cause” challenges, each party can also strike a set number of jurors, usually about 4, who they think will likely favor the other side.  These are called “peremptory strikes.”  Once the strikes are completed, the first 12 remaining jurors constitute the jury panel for the Trial.  

After jury selection, Opening Statements are presented to the jury.  The Plaintiff’s Opening Statement comes first and is intended to give the jury a “roadmap” for the trial - to describe to the jury what the Plaintiff intends to prove.  Normally, the facts of the case are outlined and the witnesses and important evidence are discussed.  Argument is not permitted in the Opening Statement.  The Defendant can decide to give an Opening Statement or defer the statement until after the Plaintiff presents its Testimony and Evidence.  

After Opening Statements, the parties present their Testimony and Evidence.  The Plaintiff goes first by calling witnesses to testify and offering exhibits into evidence.  Each witness may be cross-examined by the defense.  Next the Defendant may call witnesses and introduce evidence to support its defenses.  The Defense witnesses are cross-examined by the Plaintiff’s attorney.  Thereafter, the Plaintiff my present witnesses or evidence in rebuttal to the Defendant’s case.  

Once all testimony is complete, the attorneys deliver Closing Arguments.  During the Closing Arguments, the attorneys are able to argue why the facts and the applicable law should lead to a verdict in their favor.  Plaintiff’s attorney goes first.  After that, the Defense attorney presents a Closing Argument.  Finally, the Plaintiff’s attorney presents a brief rebuttal argument.

After Closing Arguments, the judge must give the jury instructions on the law applicable to the case, which is called the Jury Charge.  

After the Jury Charge, the jury deliberates and reaches its Verdict.  The jury Verdict marks the conclusion of the Trial.

When a case is tried to just a judge, rather than a jury (a Bench Trial), the procedure is basically the same except there is no Jury Selection, Jury Charge or Verdict.  Usually, at the end of the Trial, the judge will take additional time to consider the evidence and prepare a written decision.   

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com

Hopefully, you have been fortunate to avoid having to pursue or defend a lawsuit and will not have to do so in the future.  However, in the event that you do find yourself entangled in civil litigation, the following is a brief description of the process- the Anatomy of a Lawsuit - which consists of five phases:  Pleadings, Discovery, Motion for Summary Judgment, Arbitration and Trial.  Due to the length of this subject, it will be divided into two parts, the first of which covers Pleadings, Discovery and Summary Judgment Motions.

Pleadings

The Pleadings stage is the beginning of a Lawsuit.  Once the parties decide that a dispute cannot be settled and court intervention is required, the injury party, called the Plaintiff, files a Complaint with the Court.  A Complaint is the written document starting the Lawsuit and it sets forth the Plaintiff’s dispute with the other party, called the Defendant.  The Complaint also describes what the Plaintiff seeks to recover in the Lawsuit.  Once the Complaint is filed with the Court, it must be served on (delivered to) the Defendant.  Then, the Defendant is required to respond to the Complaint or else lose the Lawsuit by Default (failure to answer).  The Defendant must prepare an Anwer, which responds to each allegation in the Complaint.  The Defendant must also set forth any other defenses to the Plaintiff’s Complaint.  After the Answer is served on the Plaintiff, the Plaintiff files a Reply to the Defendant’s defenses.  Then, the Pleadings stage is over.

Discovery

After the Pleadings stage, the parties engage in Discovery in order to prepare for Arbitration or Trial.  The purpose of Discovery is to allow each party to learn about the other party’s case, such as what witness will be called to testify and what will say.  In addition, each party can ask the other what documents or evidence will be used in the lawsuit.  In Discovery, each party can send written questions to the other side (Interrogatories) and can ask the other party to provide copies of relevant documents (Requests for Production).  Each party can also interview the other party under oath regarding the subject matter of the case (Deposition).  Other witnesses can be subpoenaed for Depositions and either party can issue subpoenas for relevant documents  from people other than the other party.  If properly done, the Discovery process ensures that there will be no surprises at the Arbitration or Trial.  

Summary Judgment

After completion of the Pleadings and Discovery phases,  one party may feel so confident in the strength of his or her case that he or she will feel that a trial is not necessary.  In such a case, that party will ask the judge to decide the case in his or her favor before trial by granting Summary Judgment. The procedure involves the party filing a written motion with the court explaining why the evidence so strongly favors his or her case and asking for a judgment without a trial.  Then, the other party must file a response explaining that there is evidence supporting his or her case and a trial is necessary.  If the Summary Judgment motion is granted, one party wins and the case is over.  If the motion is denied the case proceeds o Arbitration or Trial.   Once the Pleadings, Discovery and Summary Judgment stages are complete, the lawsuit is ready to go to Arbitration or Trial.  In the next Post, I will describe those phases.  Stay tuned!

Tim Rayne, Esquire - MacElree Harvey, Ltd. 211 E. State Street, Kennett Square, PA 19348   (610) 840-0124   trayne@macelree.com