The Basis of A Successful Negligence Claim

I had the opportunity recently to speak with a woman who was like many of you, a person who had been injured and did not know how things worked from there. She had been damaged and could explain those damages pretty well. She had been injured, she was in pain, and she had been forced to adjust her conduct in her home, work and social situations. She had medical bills, co-pays, uninsured items and concern about her future.

As we discussed her situation, I brought her back to the accident itself and asked her to explain it to me again. When she finished I asked her what she thought the target of her claim had done wrong. Her answer was that she did not know if he had done anything wrong. I explained that it is understandable that the injured person does not know if the target of their claim did anything wrong. This firm and others like us often have to enlist the assistance of experts in many different fields to aid us in determining if someone's conduct was wrongful in some manner. But, in this instance there did not appear much hope of finding anything having been done negligently by the target. I then discussed with her the possibility that the tool that the target was using at the time of the injury might have been defective. Again, we often retain experts to assist us in determining that. But, here again it did not seem likely to me that the tool was defective and I told her that.

The potential client's reaction was that the target's insurance carrier should still pay her because of all of her damages. This is where she separated herself from many of you who already understand that our judicial system is not designed that way; it is not simply having suffered damages that create a cause of action. For a person to be liable for your damages due to their negligence they have to have done something wrong and that wrongful action must be found to have caused your injury. The elements of a wrongful act (or omission) and causation are central to any successful negligence claim.

If you have been injured and you want to discuss a claim with a lawyer, you should be prepared to discuss both of these elements with him or her. Your lawyer will need to understand the facts sufficiently to make a determination not only regarding your injuries and damages but also the facts relevant to the allegedly wrongful act (or omission) and causation.

Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration  Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555

Personal Injury Damages... Liability To Employer

When someone is injured in an accident they often need an attorney to find out if they have a claim. If the injuries were caused by someone acting in their work capacity, there is most often a claim possible against that person’s employer. This is because the employee’s negligence is assigned or “imputed” to the employer if the person was on the employer’s business at the time of the accident. This is how we come to bring claims against national and multinational corporations for personal injury claims. If you were injured because of Joe Smith’s failure to use due care when Joe was driving, then you have a claim for compensation for those injuries from Joe Smith. But if Joe Smith was driving a FedEx truck or an IBM car, you may have a claim against that business if he was driving the employer’s vehicle because he was working for the company at the time of the accident.

In certain instances these claims can go a step further. If Joe has a dubious driving record or an expired commercial license and his employer knew or should have known about those facts, you probably have a separate, independent claim against the employer for its failure to properly hire, train and/or supervise its employees. This is not the type of vicarious liability mentioned above where the blame is imputed to the employer due to the nature of the employment relationship.  It is a direct claim against the employer for its own negligence in failing to properly hire, train or supervise an employee. This has long been the approach towards the law, as stated in legal treatises such as the Restatement (Second) of Agency.

This independent, second type of claim was stated as the law in New Hampshire even prior to 1985, but it was then that the New Hampshire Supreme Court affirmed a jury verdict finding that a municipality was liable for its negligent hiring, training and supervision of a police officer where it issued a set of handcuffs and a service revolver to a newly hired but entirely untrained police officer. Not surprisingly, a citizen was injured as a result of that town’s negligence in doing so. Where an employer improperly furnishes an employee with a dangerous instrumentality, whether it is a vehicle, a service revolver or a set of handcuffs, that employer can be held directly liable for the damages that flow from that negligent act. Likewise, if the employer hires an inappropriate person or fails to adequately train that person where a reasonable person would do so, the employer likewise faces the prospect of a lawsuit should you be injured as a result of that negligence.

Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration  Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555

Appropriate Levels of Auto Insurance

2011 is a good time for me to re-emphasize that you should not compromise on the liability portion of your auto insurance policy. In the over 28 years that I have been practicing law, I have had an unfortunate and reoccurring situation with new clients. Many of them have arrived for their first meeting without knowing that it was simply a bad idea to try to save a few bucks on insurance premiums by skimping on the liability coverage in their auto policy. In our present economy we are all trying to save money and spend it where it is most needed. 

There are two good reasons why you should keep your liability limits set high. The first is that failure to do so may expose you to personal liability due to damages you are responsible for which are in excess of the coverage you have bought. Of course none of us think we will get into an accident, especially one that we cause, but you acknowledge that it is a possibility when you buy insurance in the first place. We are all human and we all are capable of making a mistake that can cause an accident. Given that and the fact you correctly decided to purchase auto insurance, make sure you buy enough insurance to cover what is considered your reasonable exposure.

A fascinating American Automobile Association report from March 5, 2008, states that the average crash costs of an automobile injury accident in 2005 dollars was $68,170. Given this fact, why someone would take comfort in having $25,000 or $50,000.00 in liability coverage is simply beyond me! You are not reasonably protected and cannot provide an adequate insurance payment to someone whom you may injure in an accident. Let me suggest that if you have a $25,000 or a $50,000 liability limit, your discussion with your insurance broker should begin with whether $100,000 is an adequate minimum amount you should consider or whether, to begin to really protect yourself from a liability exposure from a third party’s claim which is not covered by your insurance, you need to consider $250,000 or $300,000 to have the coverage you should. (Of course, for many people with substantial assets, the next topic for discussion is an umbrella policy, but that is a topic for another day.)

There is another very important reason that you should be thinking in these terms. When I say that you are not protected, I really mean that in two ways. The first, as stated, is that even with $50,000 worth of coverage, you simply do not have adequate coverage to provide funding if someone has even the average level of cost of injury by 2005 standards. But even more important to you is that if you are the injured party, as my clients often are and the responsible driver has skimped on liability insurance and so have you, the resources available to make you economically whole are minimal. On the other hand, if you have protected yourself in the manner that I am suggesting here, you not only protect yourself from the exposure created by another’s claim, but you can help yourself in the event the other party cannot.

This is because under New Hampshire law, the liability limit on your policy automatically sets the minimum limit for the underinsured and/or uninsured coverage on your policy. Therefore, if you have a $300,000 liability limit on your auto policy and are injured by someone who only has a $25,000 liability limit and no assets, we can pursue your claim to the $300,000 threshold under your own policy despite the grave limitations presented by the lack of adequate coverage in the responsible driver’s policy.

Unfortunately, I have found over the years that as often as the responsible driver has skimped on their coverage, so has my client, thereby losing the double protection you would gain by having adequate liability coverage. Your particular circumstances should be reviewed with your insurance broker and you should raise the questions about your liability limit and the underinsured/uninsured portion of your policy.

 If either you or your broker have any questions, give me a call and I will happy to help. Just please do not end up being another in the long line of clients who have come to me after they are seriously injured in an auto accident, only to discover that they are limited to a $100,000 recovery on their $300,000 claim because they skimped on their premium to save a few bucks.

Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration  Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555

What To Do: Injuries

We commonly represent victims injured by negligent behavior. On many occasions, these victims are not able to contact us to receive advice immediately after they are injured .  They are, therefore, subject to skipping some very important things they should do or doing some important things they should skip.

While it is always a good idea to contact a competent lawyer early on to obtain advice as to how to proceed in a particular situation, here are some general things to consider when you are wondering what you should do:

1. Seek medical attention as soon as possible if you are injured.
2. Cooperate with all law enforcement and emergency personnel who respond to an accident scene or have them contacted and brought to the scene as necessary.
3. Obtain the identification information of those involved in the accident and any witnesses. That would include names, addresses, telephone numbers and the other contact information of those involved.
4. If it is a vehicular accident, obtain the license plate information and insurance information of those involved.
5. If it is a situation involving an animal (like an animal bite or attack), get the name and address of the animal's owner and any permitting/license information which is available.
6. Report the accident to your homeowner's and/or automobile insurance companies if they might become involved.
7. If you or a family member has a camera, take photographs as soon as possible after the accident of the accident site, the immediate area around the site as necessary, your injuries and/or the property damage, from all angles.

Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration  Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555

What to Do: Accidents

It is always a good idea to contact a competent lawyer early on to obtain advice as to how to proceed in a particular situation.  However, there are things you should and should not do following an accident.

1. You should not move your vehicle after an automobile accident unless it is necessary for safety or required by law.
2. You should move yourself to safety as you soon as you are able without placing yourself in greater danger. That would include getting yourself out of your vehicle as you are able or out of the street or building if you are in danger by remaining there.
3. You should not leave the site of an accident unless the police tell you it is okay to do so. Leaving before the police release you may constitute a crime.
4. Make sure you retain any potential evidence regarding your claim or defense. This would include all the clothes you were wearing, including outer wear and footwear.
5. Once you are in a safe place and out of immediate danger, call for help immediately from that safe spot. .
6. You should not apologize to anyone for anything as this may be considered as an admission of fault on you part.
7. Tell the authorities the facts of what happened but do not engage in discussions about fault or liability.
8. Although you should speak to your insurance carrier, always make sure it is only your insurance carrier you are speaking to.
9. If any other insurance carrier wants to speak with you, politely but firmly decline until you have spoken to an attorney.

Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration  Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555

In Mediation; Write It Down

When you have worked your way through a mediation and gotten to a successful conclusion, reduce the settlement to writing with everyone present and all minds focused on what was agreed upon. That way it is clear that all participants really do agree on what is in and what is not in the agreement. Years ago I represented a party that was left out of a day-long negotiation during which the other 6 parties involved all settled out. I got to watch as  almost anoutside spectator while the settlement fell apart and the parties ended up back in front of the judge who was presiding over the lawsuit. The cause of the fight among the settling parties was obvious: they had failed to reduce the terms of their settlement agreement to writing at the end of what they all thought had been a successful negotiation. 

 If either the attorney or the client know of specific issues, which they need addressed as part of a successful settlement these issues need to be raised prior to the handshake and departure. If you do not want to settle without a confidentiality clause, a non-disparagement provision or any other important provisions which may come up in any individualized dispute, you must ensure those items are on the table before you conclude the settlement negotiations. Otherwise, you can expect the other party will not agree to those additional terms without new consideration, meaning you are either back to negotiating or back to litigating. The same caveat goes for enforcement provisions regarding those or other provisions. If you want terms and conditions included in the settlement, raise them before the settlement finalized.  

From what we witnessed at that long ago mediation and the subsequent court battle, my client and I learned a lot about settlement agreements that fall apart. I should note that once the dust settled on the other parties’ issues in the ensuing scramble, we were able to successfully settle our portion of the claim for the amount we had earlier determined was reasonable. And we did so without the additional attendant expense and heartburn that the other settling parties incurred due to their failure to reduce their agreement to writing.

Timothy G. Kerrigan is the director of Kerrigan Law PLLC. His present practice focuses on civil legal matters including insurance, , personal injury, family law, commercial transactional issues, litigation, mediation and arbitration  Mr. Kerrigan is also certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can contact Attorney Kerrigan at 603-943-5555