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  1. #11
    Join Date
    Oct 1971
    Posts
    5,008

    Default Re: Personal Injury Settlement and Workers Comp

    complwyr
    Punitives are not available in NC negligence actions.
    This isn't a negligence case, it's a PI auto accident claim.
    The OP would be eligible for "medical and funeral expenses, lost wages, disability, rehabilitation, pain and suffering, law suit settlements and legal expenses."- in other words, he would be made whole.
    There would be no reason to collect twice from the comp carrier.
    See Pg.1 in the below source.

    LIABILITY COVERAGE
    Bodily Injury Liability
    This coverage will pay for damages to other people as a result of an accident caused by you or
    another covered driver. Examples of damages include medical and funeral expenses, lost wages,
    disability, rehabilitation, pain and suffering, law suit settlements and legal expenses.
    http://www.ncdoi.com/_Publications/C...rance_CAU1.pdf

    The insurance companies are making plenty of money, because they are very adept at screwing over most claimants,
    From what I've seen in this forum over the years, I can understand why.

    Hell, we've had people with a smashed pinky finger trying to get a total disability rating and trying to retire at the old age of twenty five years old.
    We have people filing a stress claim because their boss asked them to work overtime - they too think they qualify for a total disability award and SSDI.
    Then we have people who file several claims with several employers for the same injury and believe each employer should pay the max amount of wage loss.
    Hell why stop at double dipping, let's triple and quadruple dip.

    I get sick of seeing the scams in this place - this is why the innocent people who are truly injured are put through hell.
    I say just collect what's fair and count your blessings - quit trying to game the system and screwing it up for everybody.
    There's no reason anyone should be entitled to two awards for the same incident, I don't care what the rational is.
    It's just plain greed and makes me question the integrity of the entire case and the character of the claimant.

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  2. #12
    Join Date
    Feb 2007
    Location
    831 East Morehead St., Ste 355, Charlotte, NC 28202
    Posts
    3,749

    Default Re: Personal Injury Settlement and Workers Comp

    A pi auto accident claim is by definition, a negligence claim. Most are ordinary negligence; if you got hit by a raging drunk, that might rise to the level of a gross negligence claim. But the basic cause of action in the vast majority of auto accident claims is negligence. Just ordinary negligence. Defendant ran a stop sign because he was careless. That is ordinary negligence. No punitives.

    Workers' comp does not provide anyone with a full recovery. It is not supposed to do that. It goes to the fundamental reason why workers' comp exists. You get part of your damages and you get it quicker without having to go through a jury trial or prove employer negligence. This gives the employer limited and somewhat predictable liability. Because it does not give you a full recovery of all your damages (as compared to the tort system), you are allowed to pursue a third party tort claim and get your comp lien reduced or eliminated. It is all perfectly legal, rational, and moral.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  3. #13
    Join Date
    Oct 1971
    Posts
    5,008

    Default Re: Personal Injury Settlement and Workers Comp

    complwyr
    Workers' comp does not provide anyone with a full recovery.
    This isn't a comp case, it's a PI auto accident claim where the OP will be made whole and wants to file a comp case on top of that to collect twice - he's asking how to deny comp the right to subrogation.

    A pi auto accident claim is by definition, a negligence claim. Most are ordinary negligence; if you got hit by a raging drunk, that might rise to the level of a gross negligence claim. But the basic cause of action in the vast majority of auto accident claims is negligence. Just ordinary negligence. Defendant ran a stop sign because he was careless. That is ordinary negligence. No punitives.
    Maybe he's not eligible for "Punitive" damages - he is still eligible for "General Compensatory Damages" which include pain and suffering, mental anguish and loss of companionship.

    General Compensatory Damages
    General damages compensate an injured individual for non-monetary damages incurred in an injury claim. They are called general damages because they address harm that is typically or “generally” sustained in an injury. All personal injury victims are expected to have at least some general damages. The most common types of general damages are:
    * pain and suffering
    *mental anguish, and
    *loss of consortium or companionship
    http://www.alllaw.com/articles/nolo/...pensation.html

    Punitive Damages for Gross Negligence in a Personal Injury Case
    The general public is probably familiar with the term “punitive damages” due to high-profile jury verdicts. However, where a case proceeds to trial, punitive damages are awarded in a very small percentage of injury cases. In order to be awarded punitive damages, the defendant’s behavior must be especially reprehensible and deserving of punishment.
    http://www.alllaw.com/articles/nolo/...gligence.html#

    Like I said, I can understand making up wage loss comp doesn't pay - collecting twice on medical is excessive, immoral and illegal, it has as nothing to do with being made whole - it's pure greed.
    People can do as they wish - they won't be in this forum asking how to game the system, then bitch about how the carriers are pricks.
    I don't and won't condone fraud on either side.

    Below is the definition of the Made Whole Doctrine and it's intention - I see nothing where the claimant can profit from multiple claims, in fact it says just the opposite.
    It says "after the insured has been fully compensated for all the loss that the insurer acquires a right to subrogation"
    In other words, the insured its entitled to nothing more than his total loss, anything in excess is subject to subrogation.

    North Carolina has laws that regulate the language used in in life, accident and health insurance policies to protect the indemnity side of a claim from overreaching carriers.
    It doesn't prohibit subrogation in it's entirety, once the insured has been made whole, subrogation is allowed. (equitable principle of subrogation)

    NORTH CAROLINA - Cite:
    "When the sum recovered by the insured is less than the total loss, the loss should be borne by the insurer. W. P. Rose Supply Co., supra; 11 N.C.A.C. 12.0319"
    And:
    the action must be brought by and in the name of the owner of the property, and that he is entitled to recover the entire damages, without diminution on account of the insurance, And that he holds the recovery first to make good his own loss, and then in trust for the insurer ...” Id. at 485 (citing Powell & Powell v. Wake Water Co, 88 S.E.2d 426 (N.C. 1916)).
    See Pg.24
    https://www.mwl-law.com/wp-content/u...-50-states.pdf

    MADE WHOLE DOCTRINE IN ALL 50 STATES
    The Made Whole Doctrine Generally
    The Made Whole Doctrine is an equitable defense to the subrogation or reimbursement rights of a subrogated insurance carrier or other party, requiring that before subrogation and/or reimbursement will be allowed the insured must be made whole for all of its damages. Precisely what being “made whole” means varies from state to state, but the concept is nonetheless fairly similar in each state. A well-respected legal treatise defines the Made Whole Doctrine as follows:
    It is widely held that in the absence of contrary statutory law or valid contractual obligation to the contrary, the general rule under the doctrine of equitable subrogation is that whether an insured is entitled to receive recovery for the same loss from more than one source, e.g., the insurer and the tortfeasor, it is only after the insured has been fully compensated for all the loss that the insurer acquires a right to subrogation.

    NORTH CAROLINA
    North Carolina has discussed the Made Whole Doctrine once, in the case of St. Paul Fire & Marine Ins. Co. v. W.P. Rose Supply Co., 198 S.E.2d 482 N.C. App. 1973). In that case, the Court held that:
    “The great weight of authority is ... that, when the loss exceeds the insurance, as the cause of action is indivisible and the right of the insurer is not because of any interest in the property destroyed or damaged, and is enforced upon the equitable principle of subrogation, the action must be brought by and in the name of the owner of the property, and that he is entitled to recover the entire damages, without diminution on account of the insurance, And that he holds the recovery first to make good his own loss, and then in trust for the insurer ...”
    Id. at 485 (citing Powell & Powell v. Wake Water Co, 88 S.E.2d 426 (N.C. 1916)).

    Ironically, North Carolina does not mention the subject again or give us any guidance as to how it is to be applied, if at all. W.P. Rose Supply Co. is a purely equitable subrogation case with no contractual analysis in its opinion. When the sum recovered by the insured is less than the total loss, the loss should be borne by the insurer. W. P. Rose Supply Co., supra; 11 N.C.A.C. 12.0319 (prohibiting subrogation clause in life, accident and health insurance policies).
    https://www.mwl-law.com/wp-content/u...-50-states.pdf

    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  4. #14
    Join Date
    Dec 2016
    Posts
    19

    Default Re: Personal Injury Settlement and Workers Comp

    My weekly wage was $1907.00 minus $944.00 (WC) leaves $963.00 that remain uncompensated. I have been writing out of work until 01/06/2018 or for 60 weeks. I very well may need another surgery, but let take the 963.00 X 60 weeks equals $57,780. If the 3rd party has 100/300 in auto insurance( I have 100k underinsured) then my best case is 75K. A whopping 16,200 for 18 months of pain and suffering.
    I think that is the way PI should be Structure.

    I filed an EEOC suit against the employer on Friday. Based on the Discovery from the insurance carriers Atty, The owner of the business has blatantly lied regarding the case. I have text, emails, witnesses to back up all my claims. In short, on two different occasions when I presented the owner with the info that 1.) I need an MRI and referred to surgeon on 10/18/16 2.) Light duty along with results of MRI 11/7/16, the employer took negative written disciplinary action the following day in each instance. He also contents the I never told him about the accident for several day( when I have correspondence the same day). Despite observing that I that my injuries were continue to deteriorate have difficulty walking or doing basic job function, he never offered treatment or to file a WC Claim. It wasn't until he made a statement in front of several employees, " i don't need you to lift a F******* thing, I don't need you to file a WC claim did I hire an atty and filed that day. The owner also stated that I resigned from My position, but he has no records. Why would anyone resign after filing a WC. I continued to give out of work notices even after he said I resigned and he acknowledge receipt. Clear documentation of retaliatory actions that he was trying to create a paper trail to avoid a WC claim.

    I originally went to the Chiropractor after the accident thinking it was a simple 1-2 week treatment. As the symptoms progressively worsened, and the Chiropractor stated that I need to see a surgeon and get MRIs did I plan on filing a WC. I was putting my relationship with the owner first. They have several business and been in business for a longtime. They had the opportunity to do the right thing. they even reassured my family and I that they were going doing all that they could to get me taking care of after I filed WC. It is absolutely bizarre. EEOC asked what my economical losses are. They informed me that retaliation and the actions described could constitute triple damages. Well as of right now my losses are 116K wages and medical and end of the year it will be $207k. So they have exposure to 3 times that amount. It should get very interest come mediation time.

    I appreciate the input and the debate on this forum. I want to thank both of you for sharing your cast knowledge.

    I don't want to double dip, but the rules are written that it favors the IC. The devastating effect that this is having on my family because they refuse to pay the weekly claim is totally unacceptable. The fact that they can deny a claim without any due diligence should be criminal. At the very least, it could be tort interference and negligence action with the intent to cause harm. They do this to gain a better position in negotiations.

    It is not fair, but I will have my living expense cut to under $1500 a month and I will bury their ass.

    It almost seems like the workmans comp. insurance carriers commit tort interference. Their actions to deny a claim without any due diligence that willfully causes harm is negligent discharge of duties that goes directly against the Article 1. 97-18 sections C D. The key words are in Good Faith.

    It would be interesting to see someone challenge them in court for this type of action. These is why I am so angry, I am losing my house and I will have my living expenses under $1500 a month and I will take to the highest court possible. I may need to change my attorney because when I asked about the claim was worth they were unable to give an answer. When I suggested 450-500k, there response was they are going to offer anything close to that and if I am expecting that then mediation is a waste of time. My response is you better get them prepared. I file an EEOC suit which if found guilty( I have very strong documentation) put they exposure between 348k to 618K depending on time factor. My wages of 1907 a week x 3(triple damages) =5721 a week. That is going to add up FAST
    Last edited by SShawk1; 04-09-2017 at 03:03 PM.

  5. #15
    Join Date
    Oct 1971
    Posts
    5,008

    Default Re: Personal Injury Settlement and Workers Comp

    Just my two cents - file the PI auto claim and to hell with comp and the EEOC suit - you'll be entitled to a full recovery for half the hassle.
    You do have an attorney - right?
    If not, hire one asp - you know who (hint)

    Good Luck and God Bless.
    Tony
    Moderator Responses are based on my personal bias, experience and research - They do not represent the views of the admin nor may be accepted in the legal community, always consult an attorney.

  6. #16
    Join Date
    Feb 2007
    Location
    831 East Morehead St., Ste 355, Charlotte, NC 28202
    Posts
    3,749

    Default Re: Personal Injury Settlement and Workers Comp

    You need to pursue both claims. If you pursue the WC and not the PI, then the WC can come in and pursue the PI case for itself, and that will cause you to lose money. So you need to take control of both claims and pursue them both yourself, with the help of appropriate lawyers. The WC lien issue can be worked out when the time comes, either by negotiation or a "j" hearing in Superior Court.

    Don't let that WC lien issue discourage you. For example, a few years ago I negotiated a $400,000 comp lien down to $15,000 and my client was able to keep most of her PI settlement, and the $400,000 that was paid out (mostly in medical) on her comp claim, as well. It in not that unusual to resolve those liens like that. It can be done.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  7. #17
    Join Date
    May 2010
    Posts
    579

    Default Re: Personal Injury Settlement and Workers Comp

    Yes my lean was 900k plus......Judge brought it down to 75k....My firm I hired, ate 25k.....so all in all I paid out of my PI claim 50k to them....

    By all means my case was not normal, and it also took over 8 years to settle out of court.....my 2 cents.

  8. #18
    Join Date
    Dec 2016
    Posts
    19

    Default Re: Personal Injury Settlement and Workers Comp

    That is my thoughts exactly. Thanks for you all you do on this board.

    Just settled PI for maximum amount of their insurance of 100k. They offered max right off the bat. Thanks for your help will keep updated

    Settled PI claim today for the Max allowed under policy. It was the first offer.

  9. #19
    Join Date
    Dec 2016
    Posts
    19

    Default Re: Personal Injury Settlement and Workers Comp

    So I sit here 90 days later without any access to the Personal injury money. There is not a lien filed and we went to Superior Court as a preemptive action so no leans could be filed. Well my regular Atty could not make it and so another one filled in. Well they blew it. Still no lien file but the Attys won't release the money. Meanwhile we starve. We have sent a demand for 615K, 160k in medical and 80k in future medical and 36k in past and 339k present value @ 6%. We have mediation set up for August. Since the are denying the claim, even though all evidence is objective with NO subjective and all medical has multiply doctors opinions, they will not pay full amount.
    Why would I compromise on what is owed? I am already giving a discount rate of 6% verus 2.44 as set by IRS for FV calculations. The atty says that they will pay medical, but will only offer me 30% maybe 50% of future. There is no way in hell I would ever settle for that. I am going to be totally permanently disabled. WTF is wrong with this scenario. I will take in front of the judge and let them explain why the false information was provide in court documents and why it was denied without cause which created more physical damage. I will demand (request) they pay all Atty fees. My question is it unreasonable to expect insurance to pay the right amount. What is your experience or recommendation with a case like this. What would you consider a good deal? and what would you consider a great deal? I am ready to go postal! I also have a rock solid REDA claim and will receive a Right to sue letter with in a week or two.

  10. #20
    Join Date
    May 2010
    Posts
    579

    Default Re: Personal Injury Settlement and Workers Comp

    Quote Quoting SShawk1 View Post
    So I sit here 90 days later without any access to the Personal injury money. There is not a lien filed and we went to Superior Court as a preemptive action so no leans could be filed. Well my regular Atty could not make it and so another one filled in. Well they blew it. Still no lien file but the Attys won't release the money. Meanwhile we starve. We have sent a demand for 615K, 160k in medical and 80k in future medical and 36k in past and 339k present value @ 6%. We have mediation set up for August. Since the are denying the claim, even though all evidence is objective with NO subjective and all medical has multiply doctors opinions, they will not pay full amount.
    Why would I compromise on what is owed? I am already giving a discount rate of 6% verus 2.44 as set by IRS for FV calculations. The atty says that they will pay medical, but will only offer me 30% maybe 50% of future. There is no way in hell I would ever settle for that. I am going to be totally permanently disabled. WTF is wrong with this scenario. I will take in front of the judge and let them explain why the false information was provide in court documents and why it was denied without cause which created more physical damage. I will demand (request) they pay all Atty fees. My question is it unreasonable to expect insurance to pay the right amount. What is your experience or recommendation with a case like this. What would you consider a good deal? and what would you consider a great deal? I am ready to go postal! I also have a rock solid REDA claim and will receive a Right to sue letter with in a week or two.
    Yea no, take a breath or two.....Really, this shit sucks ass.....I have been there.....let the dust settle.......The ones who have been through life changing accedents and the fall out from that.......Thats why I still come here daily....I dont have much to offer on the legal side.....But I walked through that valley of darkness.....you have a few wins, and a few losses........When its over its over......Please hang in their find a slice of peace, it will help you through the hell.......My blessings my friend

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