Joint Responsible Parties

Generally in any type of personal injury claim there may be more than one party to pursue. Sometimes there are several parties responsible for the same personal injuries. This is known as “joint and several liability” and here in Massachusetts, the law is structured to ensure that an accident victim receives the damages he or she is owed, even if one of the defendants is unable to pay part or all of the reward.

Specifically, Massachusetts General Law chap. 231B, sec. 2 was enacted to protect victims by ensuring that, so long as the victim was less than 51 percent responsible for the accident and the resulting injury, they’re entitled to be paid damages in full from any or all of the defendants found at fault – even of one or more of them is unable to pay. Put another way – if two individuals are found at fault and one cannot pay any or all of their share of the award, the other defendant is responsible for the award in full.

In circumstances that point to joint responsible parties, it is important to protect and pursue claims against all possible parties in the event that one cannot pay. A thorough, experienced personal injury attorney will conduct research into all possible parties who can be identified as responsible for all or part of an accident and injury. It is imperative to research the relationship between all possible parties to determine any relationship issues between these responsible parties which could benefit the plaintiff in pursuing compensation for personal injuries.

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Statute of Repose

At first glance a statute of limitations and a statute of repose can look similar, causing some to question if there’s any difference at all. But there is. In general, statutes of limitations and statutes of repose are both state laws that set time limits on the right to file a civil lawsuit. The major difference is that a statute of limitations begins when an accident or incident takes place, while the clock on a statute of repose starts when an action occurs – or substantially occurs, such as when renovations to a building are largely completed — regardless of whether damage or an injury has occurred.

However, there are a few key differences between a statute of limitations and a statute of repose.

There is a specific statute of limitations in most states that applies to “tort” or personal injury cases in which an individual’s carelessness or intentional action causes harm to another. And that same personal injury lawsuit deadline will typically apply to product liability lawsuits. The time limitation to file a suit kicks in when the damage or injury is discovered, so there could be a significant period of time between when the initial cause occurred – for example, when a defective drug was used – and when the injury was actually discovered. Here in Massachusetts the time period between discovery and filing is three years.

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Notice of Injury

If you’ve been injured in an accident it helps to know about something called “Notice of Injury.” Generally, in negligence claims such as motor vehicle accidents and slip-and-fall accidents, there is a three-year statute of limitations for filing a personal injury lawsuit, although there may be some variations that can affect that timetable. For example, if a latent injury that couldn’t be detected until some time after the accident, the three-year time limit may not start to run until the “discovery date.” If you or someone you know is injured, it’s important to immediately check with an attorney to find out the appropriate statute of limitations affecting your situation.

There also may be certain notice requirements or presentment requirements prior to the expiration of three years. For example, in certain claims against some government agencies, there may be an obligation to notice and\or present to them much earlier than the three years. This earlier notice requirement and\or presentment requirement varies with each particular type of claim. There may be the need to include certain factual allegations or legal standards which have to be included in the earlier notice and\or presentment requirements.  Because certain entities, governmental or not, have this added protection, it is imperative that an injured party speaks to an attorney as soon as possible to verify the applicable statute of limitation and then determine whether there is an earlier notice and\or presentment requirement.

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No Fault Insurance

Here in Massachusetts we have what is known as no fault insurance for motor vehicles and drivers are required to carry certain types of auto insurance with at least minimum amounts of coverage set by law.

If an insured driver with no fault insurance is involved in an auto accident and suffers injury, he or she files a claim with his or her own insurance company. Generally, in a motor vehicle accident, the injured party has the right to collect personal injury protection benefits (P.I.P. Benefits) under no fault insurance. Depending upon the situation of each claim, meaning which auto insurance carrier would pay these personal injury protection benefits, an injured party would have the right to collect $8,000.00 of benefits. Depending upon each circumstance, a person generally would have the right to collect for medical bills, lost wages and certain reimbursement for expenditures.

Typically, drivers with no-fault insurance cannot take another driver to court for costs associated with the crash, unless certain conditions are met. In Massachusetts, the thresholds that allow drivers to circumvent the no-fault insurance system and hold another driver liable for an automobile accident are $2,000  or more in medical expenses and/or injuries resulting from the accident that include permanent and serious disfigurement, fractured bone, or substantial loss of hearing or sight.

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Comparative Negligence

The real world is a complicated place and often individuals who are injured became injured through some fault of their own. In other words, they were not careful enough to avoid injury. In more legal terms, they were “negligent,” negligence being defined as “A failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances.”

To factor negligence into a court decision, there is something called “comparative negligence law” which enables plaintiffs to recover compensation for their injuries in an amount that takes into account their share of the responsibility for the injury. So, for example, if you were injured in an accident with a $500,000 settlement, but you were 50 percent responsible for the accident, you can recover only $250,000.

In Massachusetts, an injured party is barred from recovery if his or her negligence exceeds the total amount of negligence attributable to the responsible party or parties. In other words, if the injured party’s negligence is 51% and the responsible party’s negligence is 49%, the injured party cannot collect a recovery. In determining by what amount the plaintiff’s damages shall be reduced, the negligence of each plaintiff shall be compared to the total negligence of all other persons against whom recovery is sought. The combined negligence of all parties shall equal 100%.

While reducing the plaintiff’s settlement might sound a little harsh, Massachusetts is actually considered a fairly friendly state for personal injury plaintiffs. Some states will not allow ANY recovery for a plaintiff if he or she has any responsibility at all for their injuries, no matter how small the percentage. However, in Massachusetts the plaintiff is generally given the benefit of the doubt and assumed to have been prudent in their actions – the burden is upon the defendant to prove that the plaintiff was acting negligently.

If you or someone you love has been injured, it’s vital to hire an attorney with expertise and experience in comparative negligence law, such as the Law Office of James G. Haddad. Call or email us to learn more about how we can help you recover the settlement you deserve.

Who should file my claim?

image of a lawyer writing up a legal claimOften, an individual involved in an accident doesn’t realize the need or the benefit of retaining an attorney after an accident and attempts to process the necessary claim paperwork without legal assistance.  Depending upon the type of claim, this initial paperwork can be complicated and have possible detrimental results if not done properly, limiting the claimant’s ability to collect for damages or injury.

Whether it’s a motor vehicle accident, where forms must be filed which include a description of the accident; or a worker’s compensation claim, where some of the necessary forms also include a description of the accident; forms must be filled out properly and satisfactorily because the description provided as to how the accident occurred will be reviewed during the litigation process. This might be the first chance insurance company has to assess liability. Mistakes made in the description of the accident can sometimes have detrimental effects once litigation commences.

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First Seek Medical Care

image of man on stretcher being treated by a firefigher and emtAfter an accident, the primary concern of any victim should be their own health and well-being. The failure to seek immediate medical attention could have long-lasting consequences upon one’s health and abilities. It is always a good idea to be checked out by a doctor or other qualified medical professional as soon as possible after you are involved in a vehicular accident. It’s important to overcome the natural tendency to skip going to a doctor or hospital, and avoiding the hassle and expense of seeking medical care. Don’t wait even a few days to evaluate how you feel after an auto accident and before deciding to seek medical attention. The wait-and-see approach is not the best course of action.  It can not only affect your medical well-being, waiting too long for medical help can affect your legal case as well.

Another reason to seek medical care right away: waiting too long to be medically examined after an auto accident could significantly harm your opportunity to receive fair compensation. The validity of your legal claim may suffer from the delay in obtaining medical treatment. The other party can more easily argue there was an intervening cause for the pain or injury, or that the injury is fictitious because it was not bad enough to warrant medical attention for hours, days, or even months after the accident. Most auto insurers will interpret a wait-and-see approach as an indication that the claimant has not truly been injured. Insurers tend to assume that individuals who are seriously hurt after a car accident will obtain the proper medical help immediately.

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Bicycle Accidents

picture of a bicycle lying in front of a stopped carAs you know, bicycles are everywhere. If an accident occurs, the first thing one should do is to attempt to obtain all the necessary insurance information from the responsible party. This insurance information will be necessary to assist a personal injury attorney in processing the personal injury claim.

The first factor to note when pursuing a bicycle accident injury claim is that it is an injury claim. The plaintiff (the person making the claim) must have sustained some form of injury either physical or psychological as a result of his/her bicycle accident. Even where a driver has indeed acted negligently, even criminally, one should note that with regard to the civil law a potential plaintiff can only claim compensation for a personal injury loss or damage that he or she has in fact sustained.

The cause of a bicycle accident is not always obvious. In many situations, one party may be completely to blame. However, it is also true that more than one, or several, factors may have contributed to the bicycle accident. Moreover, one of the causal factors may have, in fact, been the negligence of the injured party (the cyclist). For example, perhaps the cyclist rode out onto the road without looking, failed to wear a helmet, or was perhaps cycling at night without lights. How can blame be apportioned? Is the injured party entitled to any form of compensation if he or she has contributed, even slightly, to their own accident?

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What If I’m Partially at Fault?

What If I’m Partially at Fault?Accidents happen and sometimes they are partially your fault. Liability is usually clear cut when a driver runs a red light or rear-ends another car. However, determining who gets compensation can be complicated, when one person fails to yield to another at a four-way stop or a pedestrian jaywalks across the street.

Often, before speaking with an experienced personal injury attorney, an injured person mistakenly believes that if they are partially at fault for the accident, then they’re not able to seek a recovery. Depending upon the circumstances, this may or may not be true.

When this occurs, the percentage of fault of the injured party versus the percentage of fault of the allegedly responsible party should be assessed because in Massachusetts something called comparative negligence is used to determine fault and compensation in an accident. For example, if it’s determined that the amount of damage is $1,000 and you were found to be 40 percent responsible for the accident, you would then be responsible for $400 in damages, while the other driver would be responsible for $600.

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Spinal Injuries

Spinal InjuriesOften victims of spinal cord injuries may be forced to endure lifelong pain and suffering and to incur medical bills over the course of his or her lifetime. Often there is a need for multiple surgeries, over an extended period of time, in order to address medical concerns. Even with surgery, victims of spinal cord injuries can still experience lifelong pain and have a loss of earning capacity over their lifetime. Victims of paralysis, such as quadriplegia and paraplegia, are often forced to participate in complex litigation in order to seek the necessary compensation to compensate them for these conditions.

It is imperative in choosing an attorney that he or she has experience in coordinating experts such as an economist, a vocationalist, and a life planner. These experts are often needed to accurately and convincingly present a compelling argument to a jury that adequate compensation must be provided to cover the lifelong medical bills and loss of earning capacity of the victim. An attorney must have the ability to retain these experts and properly prepare them for trial. The failure to do so can be the difference between a successful trial and an unsuccessful one.

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