fbpx

Customer Inquiry

(704) 351- 7979

Email

Man Charged with Motorcycle Crash May Face Wrongful Death Claim

Oct 25, 2013 | Personal Injury, Uncategorized, Wrongful Death

A 39-year-old man with DUI resulting in death after a coSpartanburg authorities have charged llision between a vehicle and a motorcycle left the motorcyclist injured and his two passengers dead. Motorcycle Accident AttorneyThe man charged with drunk driving is being held at the Spartanburg Detention Center.

The suspect was driving a Nissan Maxima on Hwy 417 when he approached the 1970’s Suzuki motorcycle, did not stop, and struck it from behind killing two people near Hwy 101.  The impact tossed all three people from the bike, and the one survivor was very seriously injured, and was airlifted to Greenville Memorial.

Thereafter, the suspect was taken to Spartanburg Regional Medical Center before being taken to the jail.  He is being charged with two counts of DUI involving death, and one involving great bodily injury.

This may give rise to a potential personal injury or wrongful death claim.

In North Carolina, the Wrongful Death Act is as follows:

§ 28A-18-2.  Death by wrongful act of another; recovery not assets.

(a)        When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled the injured person to an action for damages therefor, the person or corporation that would have been so liable, and or her the personal representatives or collectors of the person or corporation that would have been so liable, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony. The personal representative or collector of the decedent who pursues an action under this section may pay from the assets of the estate the reasonable and necessary expenses, not including attorneys’ fees, incurred in pursuing the action. At the termination of the action, any amount recovered shall be applied first to the reimbursement of the estate for the expenses incurred in pursuing the action, then to the payment of attorneys’ fees, and shall then be distributed as provided in this section. The amount recovered in such action is not liable to be applied as assets, in the payment of debts or devises, except as to burial expenses of the deceased, and reasonable hospital and medical expenses not exceeding four thousand five hundred dollars ($4,500) incident to the injury resulting in death, except that the amount applied for hospital and medical expenses shall not exceed fifty percent (50%) of the amount of damages recovered after deducting attorneys’ fees, but shall be disposed of as provided in the Intestate Succession Act. The limitations on recovery for hospital and medical expenses under this subsection do not apply to subrogation rights exercised pursuant to G.S. 135-45.1. All claims filed for such services shall be approved by the clerk of the superior court and any party adversely affected by any decision of said clerk as to said claim may appeal to the superior court in term time.

(b)        Damages recoverable for death by wrongful act include:

(1)        Expenses for care, treatment and hospitalization incident to the injury resulting in death;

(2)        Compensation for pain and suffering of the decedent;

(3)        The reasonable funeral expenses of the decedent;

(4)        The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;

a.         Net income of the decedent,

b.         Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,

c.         Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;

(5)        Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had the decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5;

(6)        Nominal damages when the jury so finds.

(c)        All evidence which reasonably tends to establish any of the elements of damages included in subsection (b), or otherwise reasonably tends to establish the present monetary value of the decedent to the persons entitled to receive the damages recovered, is admissible in an action for damages for death by wrongful act

South Carolina Wrongful Death Act:

SECTION 15-51-10. Civil action for wrongful act causing death.

Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony.  In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.

SECTION 15-51-20. Beneficiaries of action for wrongful death;  by whom brought.

Every such action shall be for the benefit of the wife or husband and child or children of the person whose death shall have been so caused, and, if there be no such wife, husband, child or children, then for the benefit of the parent or parents, and if there be none such, then for the benefit of the heirs of the person whose death shall have been so caused.  Every such action shall be brought by or in the name of the executor or administrator of such person.

SECTION 15-51-30. Effect of illegitimacy.

In the event of the death of an illegitimate child or the mother of an illegitimate child by the wrongful or negligent act of another, such illegitimate child or the mother or father or the heirs at law or the distributees of such illegitimate child shall have the same rights and remedies in regard to such wrongful or negligent act as though such illegitimate child had been born in lawful wedlock.

SECTION 15-51-40. Damages;  amount and to whom payable.

In every such action the jury may give damages, including exemplary damages when the wrongful act, neglect, or default was the result of recklessness, wilfulness, or malice, as they may think proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit such action shall be brought.  The amount so recovered shall be divided among the before-mentioned parties in those shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his or her estate.  However, upon motion by either parent or any other party of potential interest based upon the decedent having died intestate, the probate court may deny or limit either or both parent’s entitlement for a share of the proceeds if the court determines, by a preponderance of the evidence, that the parent or parents failed to reasonably provide support for the decedent as defined in Section 63-5-20 and did not otherwise provide for the needs of the decedent during his or her minority.

SECTION 15-51-42. Approval of settlements of wrongful death or survival actions.

(A) Only a duly appointed personal representative, as defined in Section 62-1-201(30), shall have the authority to settle wrongful death or survival actions.

(B) If no action is pending, the personal representative shall petition either the probate or the circuit court of this State seeking approval of a proposed settlement.  The petition must be verified by the personal representative and shall set forth, in terms satisfactory to the court in which the petition is filed, the basic facts surrounding the death of the decedent, the pertinent facts surrounding the liability of the alleged wrongdoer, the amount of insurance available to pay for damages, the terms of the proposed settlement, the statutory beneficiaries of the wrongful death or survival action, the heirs at law or appropriate devisees of the estate, the appropriate creditors, the amount of their claims, and, if the personal representative has retained legal counsel, the terms and provisions of the agreement with respect to attorney’s fees and costs.

It is not necessary that a personal representative be represented by legal counsel for the court to consider the petition and approve the settlement.  If the personal representative is represented by legal counsel, the counsel shall sign a certificate attesting to the fact that he is of the opinion that the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent.

The court shall schedule a hearing and receive into evidence those facts that the court considers necessary and proper to evaluate the settlement.  After conducting this inquiry, the court shall issue its order either approving or disapproving the proposed settlement.  If the settlement is approved by the court, the personal representative has the power to conclude the settlement, including the execution of those documents as the settlement terms contemplate.

(C) If a wrongful death or survival action has been filed in state court and:

(1) the settlement agreement between the parties is reached before the matters reach trial, the personal representative shall petition the court in which the wrongful death or survival action has been filed and follow the procedure for settlement as provided in (B) above;

(2) the settlement agreement is reached during the trial, or after trial but before notice of appeal is filed, of either the wrongful death or survival action, then no petition is necessary, and the court shall conduct a hearing, at which the parties may present to the court the pertinent facts and information, including that information required in subsection (B) above, which the court may require in order to consider whether to approve or disapprove the settlement.  If the court finds the settlement is fair and reasonable and in the best interests of the statutory beneficiaries and, in a survival action, the estate of the decedent, then the court shall issue its order approving the settlement;

(3) the settlement agreement is reached after notice of appeal is filed, the personal representative shall petition the appellate court before which the matter is pending to remand the case to the circuit court for consideration of the settlement agreement in accordance with the procedure outlined in (2) above.

(D) For any actions pending in the federal courts, the same procedure may be followed, but the federal court, at its discretion, may issue an order transferring the case to state court for consideration of the proposed settlement.

(E) Once a settlement agreement has been approved by an appropriate court, the person paying the settlement proceeds and all those on whose behalf the payment is made and any other persons who could be responsible because of the actions on whose behalf the settlement proceeds are being paid, are relieved and discharged from further liability and shall have no obligation or legal duty to see to the appropriate or proper distribution of the settlement proceeds among either the wrongful-death beneficiaries or those entitled to the proceeds of the settlement of the survival action.  Once payment has been made to the personal representative, the obligations of the person making the payment and those on whose behalf the payment is being made, and all those who could be responsible for the actions of these persons, are fully and completely released and finally and forever discharged from any further responsibility in connection with the action or actions.

(F) Any person bringing a wrongful death or survival action in a court other than the probate court must notify the probate court of this action within ten days after the filing of the action.  The provisions of this subsection apply to wrongful death or survival actions filed after the effective date of this section.

(G) When the administration of an estate is final except for the administration of survival action proceeds because of the pendency of a survival action brought on behalf of the estate, the probate court may issue, upon petition by the personal representative, a special order providing that no accountings are required until the survival action is settled or verdict rendered in a trial.  The attorney for the personal representative must notify the probate court immediately upon completion of the survival action and furnish the court with a copy of the order approving settlement or a copy of the judgment, whichever is appropriate.

If a loved one has been killed in an accident in North or South Carolina, you may have a wrongful death claim.  Contact the law offices of Reeves, Aiken & Hightower, LLP for a confidential consultation.  You can reach our South Carolina office at 877-374-5999, and our North Carolina office at 704-499-9000.

Rear-End Accidents and Who is Really at Fault When You Are Injured

Oct 22, 2013 | Car Accidents, Criminal Defense, Personal Injury, Uncategorized

If you are in an automobile accident and suffered personal injuries, where you have been rear-ended by another vehicle it is likely that you believe it is the other driver’s fault.   It is true in most cases that if you are rear-ended, the driver of the vehicle is at fault because the majority of the time these collisions occur as a result of following the vehicle too closely, or not paying attention to changing traffic conditions.  Personal Injury Attorney

However there are some exceptions to this rule and if you happen to rear-end someone you may not be at fault.

If the driver who was rear-ended was driving recklessly or intended to cause an accident that driver may be found at fault.  For example, take a situation where someone rear-ended another vehicle, and the driver of the vehicle stated that he knew the other driver who was following him was too close so he slammed on his brakes with the intent that the driver would rear-end him.

In this case, the driver would have stated matter of factly that he knew that if he was rear-ended it would not be his fault.  This is not the case.  The driver who was rear-ended in this case was cited for reckless driving and could now be on the hook for damages to the driver who rear-ended him.

Another exception to this rule is a multi-vehicle collision.  If more than two cars are involved in an accident in which a single vehicle rear-ended one vehicle and it resulted in a line of vehicles rear-ending each other than the driver who initially hit is likely to be liable.

For example, if there are two cars stopped a red light and a third vehicle does not brake in time and hits the second vehicle which in turn causes the second vehicle to hit the first, then the third vehicle will be liable to both drivers he hit.

If you are in an accident in which you are rear-ended or if you rear-ended someone else you need to learn what your options are.  You may not be at fault and need to contact an attorney who has experience dealing with automobile accidents and personal injury will work hard on your case to get you what you deserve.

The attorneys of Reeves Aiken & Hightower LLP stand ready to fight for you if you have been in accident in South Carolina. We encourage you to call us toll-free at 877-374-5999 for a private, confidential consultation to discuss your options on your injuries you have sustained.

SC Modified Comparative vs. Pure Comparative Negligence

Oct 21, 2013 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized

In the state of South Carolina, a person’s ability or right to recover after being involved in a serious accident maybe controlled and conjunctively limited by the state’s laws governing negligence claims. Specifically, South Carolina is one of the many state’s that follow the rule of “modified comparative negligencePersonal Injury Attorney.” The next logical question is what is “modified comparative negligence” and how does that differ from pure comparative negligence?

The answer can be broken down by percentages. Thus, under South Carolina’s “modified comparative negligence” rule, if a person is more then 50% at fault( even if it is 51%), as determined by the appropriate fact finder, then the plaintiff will be precluded from recovering anything. Under this modified system, the plaintiff will be permitted to a ” partial recovery.” Under partial recovery, the law states that any percentage of fault on the plaintiff’s part will be reduced and then deducted from the final compensation/settlement amount.

Conversely, under the pure comparative negligence rule, the degree of fault exercised by the plaintiff will not bar recovery, even if the plaintiff is found to be 90% at fault. In other words, the plaintiff can recover some percentage from the defendant regardless of the extent to which they were responsible for the accident. However, the amount of recovery maybe reduced by fault, just as in the modified comparative negligence theory explained above for partial recovery..

So, let’s put these two theories to the test and use a hypothetical to further explain. Let’s say that there was a serious car accident involving only one plaintiff, and one defendant. The facts of the accident are essentially moot, as the focus of this discussion is based upon the method of recovery. Thus, the two parties, after much deliberation, go to court and it is found that the plaintiff is 40% at fault, and the defendant is found to be 60% at fault. The settlement amount has been determined to be $100,000.

Under the modified comparative negligence theory, the plaintiff would only be entitled to recover $60,000, as they were 40% at fault and the settlement was for an even $100,000. This is not to say that the defendant will be awarded the remaining $40,000, but rather that the amount the defendant( or his insurance company) is to pay will be reduced to that $60,000 amount.

Now, let’s change the facts a bit and say that the plaintiff was found to be 60% at fault and the defendant was only 40% at fault. Under South Carolina’s rule, the plaintiff would be barred from recovering anything, because they degree of fault has crossed over that 50% threshold in the aforementioned paragraphs.

However, under the pure comparative negligence theory, the plaintiff would still be entitled to some recovery; however only for the $40,000, as they were found to be 60% at fault.

Thus, in the event that you or a loved one find yourself involved in any sort of serious accident or personal injury, contact the law offices of Reeves, Aiken, and Hightower, LLP to talk to one our our experienced personal injury attorneys today toll free at (877) 374-5999

Car Wreck Kills Woman: Modified Comparative System For Negligence

Oct 17, 2013 | Car Accidents, Personal Injury, Uncategorized

Personal Injury AttorneyA three-vehicle collision on Interstate 26 resulted in the death of a Columbia, South Carolina woman. The South Carolina Highway Patrol reported the accident occurring when all three cars involved headed east near Piney Grove Road when an SUV spun out of control, flipping over the interstate.

Thereafter, the SUV struck another SUV. The second SUV flipped over the median, killing the 53-year-old woman driver. While the first SUV was at a stop, it was hit by a third car. The only reported casualty was that of the woman; no one else was injured. The South Carolina Highway Patrol is investigating the accident for possible negligence.

Negligence is defined as “the failure to exercise the standard of care that a reasonably prudent person would have exercised under similar circumstances.” In South Carolina, there are four essential elements: (1) that there was a duty of care owed by the defendant; (2) the plaintiff must show that the defendant breached that duty of care; (3) the plaintiff must illustrate that the breach of such duty caused the injury to the plaintiff; and (4) plaintiff must show damages.

Different states utilize different forms of negligence systems. South Carolina uses the modified comparative system for proving negligence. This is also known as the 51 percent rule, and under this system, a plaintiff may only receive damages from a defendant if the plaintiff himself can prove that he is less than 51 percent responsible for his injuries. Therefore, the defendant is only responsible for those injuries he caused, and further, he must be more than 50 percent at fault.

If you or a loved one has been involved in a car wreck and have suffered personal injuries, you may be entitled to contribution for your injuries. Call the law offices of Reeves, Aiken & Hightower, LLP for a consultation toll free at 877-374-5999.

What to Do When You Have a “Personal Injury” in South Carolina?

Oct 16, 2013 | News, Personal Injury, Uncategorized

Personal Injury AttorneyOften times, when people are involved in any sort of serious accident, personal injuries have likely been sustained. Contrary to popular belief, “personal injuries” do not just encompass physical injuries to your person; but also any other type of suffering one maybe dealing with due to the accident.

For example, if you have been injured in a car accident and have to take time off from work, the lost wages you incur will be calculated as a “personal injury.” What about the medical costs that are piling up one after another? Those too are considered to be “personal injuries,” and will be evaluated with your claim. Sometimes even the pain and suffering you have gone through maybe computed into your personal injury claim.

Thus, the next logical question is…what do I do if I have been involved in an accident and I have sustained personal injuries? The obvious answer is to contact a personal injury attorney so you don’t have to go through this alone.

Insurance companies often times get wind of the accident from the opposing party and will attempt to contact you before you have gotten a chance to sort your life back out.

That is what we are here for. We can serve as a buffer to mediate between you and those insurance companies that feel that people are all just numbers.

At Reeves, Aiken, and Hightower, LLP, each personal injury case is individual and significant to us. Clients are entitled to speak directly with the partners of the firm as well as any paralegals assisting on the case. We are notorious for returning client’s phone calls the day we receive them, as we know how important it is to speak to your lawyer personally.

We strive to make ourselves personal available and would be honored to assist you with your, or your loved ones personal injury claim today. Contact us toll free at 877-374-5999 for a free consultation.

 

Statute of Limitations in South Carolina for Personal Injury Suits

Oct 7, 2013 | Assault and Battery, Negligent Infliction of Emotional Distress, Personal Injury, Uncategorized

joe-personal injury castHow long do you have to file a personal injury suit in South Carolina?

When you are injured in South Carolina, you only have a limited time to file your personal injury suit. Bottom line. Depending on what your injury is, or what type of suit you are filing, will affect the time that you have the bring suit.

The set amount of time that you have to file you suit is referred to as the “statute of limitations.” There are even certain circumstances where if the person becomes aware, or should have become aware of the injury. This is found under any federal or state rule called the “Discovery Rule.”

Most importantly, South Carolina statute of limitations laws may differ from those of other states. Here is the comprehensive list of how long a person has after having a personal injury occur in their life to file suit in South Carolina:

1: If the claim is one of negligence, such as a car accident, or a slip and fall case, you have three years from the date of injury to file suit.

2. If the plaintiff wishes to file a civil suit against the defendant for assault or battery, they have three years to file suit from the date of incident.

3. If there is a claim the plaintiff is making for defamation, they have two years after the defendant “publicized” the false statement to bring suit. This personal injury is more one towards reputation.

4. All strict liability claims, meaning that there is no fault on part of the defendant, but he is still forced to pay, must be brought within three years.

5. If there is an injury due to a product malfunction, under a South Carolina product’s liability claim, the plaintiff has three years to bring suit since the date of injury.

6. Lastly, when the victim/plaintiff is killed in a wrongful accident, the family or estate of the victim has three years to bring suit against the defendant.

If you have become victim to any of the aforementioned injuries listed above, contact the personal injury attorneys at Reeves, Aiken, and Hightower, LLP toll-free at 877-374-5999 for more information.