Personal Injury Law Blogs

Fatal Car Accident in St. Louis Likely Due to Texting While Driving

A great deal of car accidents that have occurred in Missouri have been caused by drivers who were texting while driving.  In November 2012, a 29-year-old man from St. Louis died in a single-vehicle crash.  Authorities that arrived on the scene found the young man’s cell phone in the front seat disclosing an incomplete text message, indicating that the man had most likely been texting when he lost control of his vehicle, so these cause accidents sometimes, so the use of a car accident attorney is useful to deal with cases like this.

The driver was ejected from his car during the accident, and died shortly after.  Since the accident, there has been widespread talk about putting forth some law that would limit or dismiss cell phone usage for those driving automobiles.

Currently, Missouri is one of only eleven states that doesn’t have a full ban on texting while driving.  The only people who aren’t allowed to text while driving are those who are under the age of 21, which doesn’t make any sense at all if you ask me.

Over the past decade, there have been a number of assorted bills aimed at implementing some law against texting while driving for people of all ages, but none of them have passed Missouri’s state legislature.  Oppositions of the ban say that it would intrude on their freedom, and or act as a government incursion.

I live in St. Louis, and I can’t even begin to tell you how much texting while driving takes place in this city.  I actually had to hire a St. Louis car accident lawyer two years ago because I was hit by an individual who, although confessed to texting while driving, still wouldn’t admit that the accident was his fault, and thus the case had to be settled in court.

Regardless, there needs to be a law put forth in the state of Missouri that would prevent people from texting while driving, and not just for those under the age of twenty one.  Until such law is implemented, there will continue to be car accidents caused by texting while driving.

Author: Bryan is an avid writer for Kullmann, Klein & Dioneda P.C., a group personal injury and workers’ compensation attorneys in St. Louis, MO.

Does Your Injury Qualify You For Workers’ Compensation?

Does Your Injury Qualify You For Workers Compensation?

(U.S. Injury Law and generally) When an employee is injured on the job, the law provides employees the right to receive certain compensation for their injuries and coverage for any medical costs. Every state has a workers’ compensation program. While workers’ compensation statutes are not uniform among all 50 states, the nature of injuries that are covered tends to be consistent across the nation, a Workers Compensation Attorney can give you a good more advice about this process.

Injuries Qualifying for Workers’ Compensation

Physical injuries are a common source of workers’ compensation claims. They can be cumulative; a repetitive stress injury can impede an employee’s ability to perform work just as surely as a broken leg. Back, leg, hand, and neck wounds can all occur on the job whether through falls, being struck by equipment, or being involved in an automobile accident while working for the company. Illnesses and diseases incurred as a result of the job are also covered; increased exposure to chemicals can cause respiratory, skin, and other health problems.

Nearly any injury on the job that results in a reduction in the employee’s ability to perform work may be covered by workers’ compensation. The type of grievance and the extent of it will determine the type of workers’ compensation awarded. Medical care will be covered until the wound has healed, but if the grievance did not result in a reduction in an ability to perform work, the employee may not be entitled to a change in work assignments or any other compensation.

Not all injuries are covered. Workers’ compensation is intended to cover employees for physical damages incurred on the job. As a result, the wrong must have occurred while the employee was acting within the course and scope of his or her employment. Each state will have different rules and different case law as to what type of actions will constitute acting within the course and scope of employment; depending upon the state, running personal errands on company time or traveling to and from work may or may not be covered.

In addition to limiting coverage to damages suffered while working, the laws require employees to act somewhat reasonably. If the harm was suffered as a result of gross negligence on the part of the employee, the grievance will not be covered. If the injury was deliberately self-inflicted, the employee will not be covered under workers’ compensation. Finally, the harm must not have been incurred while the employee was under the influence of drugs or alcohol.

What to Do When Injured?

Applying for workers’ compensation is simple, but the process varies by state. Also, know the insurer’s guidelines, especially when dealing with a company known for its high denial rate – such as a workers compensation Liberty Mutual claim – make sure each step meets their requirement to qualify for due compensation. Generally, workers must begin the process by notifying their employer as soon as it is practical to do so upon suffering harm. In most states, employees will receive a workers’ compensation form from their employer. They fill out the form, which always contains a description of the injury, the employee’s information, and the treating physician’s information. The worker then submits a copy of it to his or her employer. The employer then fills out its own form and submits it to a claims administrator.

In some cases or in other states, an employer may not furnish an employee with any documentation following a grievance. An employee may still file for workers’ compensation by downloading the forms off the web site of the relevant state agency that governs workers’ compensation and manually submit them. If the process is not on the web site, injured employees can call their state agency and ask for addresses, forms, and clarifications regarding the application process. Employees who disagree with the extent to which they are considered disabled as a result of their injury may appeal the decision.

Workers’ compensation is a simple and efficient system to compensate employees for most workplace injuries. In many cases, employees need to do little beyond submitting one form and receiving due workers comp medical care. If the employer is non-compliant for some reason and refuses to provide coverage, simply complain to the state agency that regulates workers’ compensation practices in that state.

Kelly Dennie is a business owner and freelance writer in the Metro Atlanta area. The attorneys of Doyle Raizner LLP are well aware of the fraudulent activity in workers compensation Liberty Mutual bad faith cases. During litigation, it has been uncovered that medical evidence was ignored and coverage was willfully denied.  When this happens, further damage can be caused to the harmed employee by their deteriorating medical condition, as well as, the loss of monetary stability and good credit rating while their claim is unlawfully delayed.

Zero Control: Biggest Danger for a Motorcycle Passenger

(Guest post, mainly based on US law and general information). There are few better ways to enjoy a hobby than to share it with a good friend or significant other. Many motorcycles are built to accommodate rear passengers and many people are enthusiastic about riding on a motorcycle, even if they are not actually operating the machine. Unfortunately, riding a road bike can be hazardous.

The Risks of Being a Motorcycle Passenger

Motorcycle passengers are in a unique position with respect to severe accidents. Automobile occupants have large crumple zones, airbags, and seat belts to reduce the incidence of serious injury in the event of a collision. In contrast, motorcycle riders and passengers must rely upon strong helmets and crash-resistant clothing, which provide relatively little protection in the event of a direct collision with a fixed object. This results in higher g-forces being imparted onto the body, resulting in a higher incidence of death or serious bodily injury.

Motorcycle passengers are at a particular disadvantage due to the limited degree of control that they have over the motorcycle. Riding a big bike usually requires some degree of body movement and a willingness to lean into corners. While a motor vehicle passenger may sit immobile and not affect the driver, a motorcycle passenger who fails to lean into a corner or who leans off the other side can impair the driver’s ability to corner at all, thus increasing the probability of a collision. At the same time, a leaning passenger may not be enough to avoid a collision. Thus, motorcycle passengers may contribute to their own injuries while also incurring liability for someone else’s injuries.

Restricted Passenger Input

Additionally, high wind noises and the inherent insulation provided by the helmets worn by both parties will usually make communication between a bike driver and his or her passenger difficult. Passengers cannot easily tell the rider to slow down or notify the rider of hazards like potholes and oil on the road. Thus, unlike an automobile passenger, a motorcycle passenger usually cannot provide a second set of eyes if the operator becomes distracted. Driving a road bike safely requires careful scanning of pavement conditions and upcoming intersections; if the driver fails to do his part, there is little that a passenger can do to compensate.

Recovering from a Motorcycle Accident

Even passengers who wear proper helmets and other protective gear can be seriously injured, whether in a motorcycle accident NH or CA. This can result in high medical bills and a reduced ability to earn an income. Fortunately, injured passengers have rights. If a motorcycle collides with a vehicle, fault will not normally lie with the passenger on the motorcycle. As such, the party at fault for the collision may be liable to the injured motorcyclist for negligence. If the negligent act resulted in a death, the injured cyclist’s family members may have a statutory cause of action for wrongful death.

Motorcycle passengers get the same lack of protection from severe impacts that any motorcyclist gets while having minimal control over the vehicle. In this respect, the passengers get the worst of all worlds with respect to accident and injury prevention. If the motorcyclist wrecks while driving recklessly or if another motorist carelessly collides with the motorcycle, the passenger is likely to be a seriously injured innocent victim. In such a situation, retaining an attorney experienced in handling motorcycle accident cases may be the only way to recover medical costs and other damages.

A former reporter, Ann Bailey posts these issues of safety for passengers of road bikes. The motorcycle accident NH attorneys at Tenn And Tenn, PA are road warriors themselves and, having been riders for more than 20 years, provide dedicated legal help for any victim or victim’s family in cases of motorcycle accident injury.

The Rise of the Financial Downturn: Contributing Factors

Guest post from personal injury lawyers.

While most businesses are hit hard by the economic crisis, the claims market actually thrives during a financial downturn. Although many experts grumble about the compensation culture, statistics show that economic booms correlate with fewer personal injury claims. So why are people calling up their lawyers so readily during a recession?

Redundancies

With more than 1.3 million people losing their jobs by 2010, due to the economic downturn, and employment opportunities few and far between, those who’d been made redundant seemed more likely to file a claim. Why?

While under employment, staff can be concerned about losing their job, if they make a personal injury claim. Even though this rarely happens – and if it did, you could take your employers to court over unfair dismissal – employees seem to be hesitant about collecting compensation. However, when made redundant, there’s no loyalty left to the business, and people seem to be more comfortable about making a claim.

There’s also a large window of opportunity to contact a solicitor, as you can make your claim up to three years after the incident occurred. With increasing numbers of people fired or made redundant, the personal injury claim figures have likewise grown.

Business Negligence

Homes and corporations alike are suffering from severe expenditure cutbacks. Businesses are having to make-do with spartan levels of staff and resources.

With employees rushed off their feet, quality of service can be jeopardised, such as in the NHS, where nurses are thin on the ground due to ‘reforms’ – medical negligence can then occur, purely because the staff-to-patient ratio is inequitable, leading to an increased amount of complaints.

Health and safety, as well as training, can be affected, and stress levels can go through the roof, leading to medical problems.

Rise Of the ‘No Win No Fee’

From personal injury claims in Liverpool to medical negligence complaints in London, ‘no win no fee’ solicitors are making it easier than ever to file a personal injury claim. With court fees being what they are, the claimant now has the security of knowing that they’ll only have to pay-up, if they win their case. Equally, solicitors are likely to give it their all, as the only way that their company makes a profit is if they win!

Poor Financial Situation

Thanks to the recession, most UK citizens are in a worse financial position than before. When your bank balance is in dire straits, making a claim will be more attractive, if that means you can lift your family above the bread line or afford a much-needed holiday. In a pinch, the possibility of money is a compelling incentive to contact a solicitor.

Also, a drop in disposable income will mean that individuals will choose cheaper services, such as home improvements that could go awry. Although low-end contracting doesn’t necessarily mean substandard work, you may find yourself injured after an inexpensive workman does a poor quality job on your house.

Composed by Hughes Carlisle personal injury solicitors in Liverpool who are reflecting on economy changes and the role we as a nation have helping improve the claiming situation.

The Latest in Accident Prevention Technology for Vehicles

distracted driverCar accidents have become a topic of concern due in large part to the issues with distracted driving increasing astronomically over the last few years. The big question is how do we cut down on distracted driving and increase safety? Last year there were several new developments in automotive accident prevention technology, debuted by some of the major automakers in the world. Some of them may seem like radical ideas now, but seat-belts and airbags were looked at much the same way when they debuted. Even though there are still people who will not wear their seat-belts and people who look around for old models with no airbags, the question remains: should people be given the choice with these new technologies or should they become standard in all vehicles? Here are some of the newer advances in accident prevention technology followed by the opinion of a major safety group.

Nissan Creates Pedal Manipulation Technology

In what may become standard in all their vehicles, starting with the Elgrand MPV, Nissan premiered their new Emergency Assist for Pedal Manipulation Technology in late 2012. The new system uses four cameras and ultrasonic sonar to detect whether or not the vehicle is in a parking space and if there are obstacles surrounding it. It then automatically adjusts the accelerator and brake pedals in case the driver hits the wrong one while leaving the space.

GM’s Wi-Fi Pedestrian Detection

With the use of Wi-Fi direct, a system that allows devices like smartphones to communicate with each other wirelessly, GM hopes to make pedestrian collisions a thing of the past. Although it is still in the development phase, many believe that the system could roll out shortly. This technology will help drivers locate possible obstacles on the road, like cyclists and construction workers, from as far away as 656 feet. Even though GM is still not ready to launch this technology, it doesn’t mean that this won’t be standard in every vehicle in a couple of years. The reason to seek these sorts of innovations is that commercial vehicles can be a huge liability for the business they run for as they get involved in accidents. Every year, these companies seek the assistance of commercial vehicle wreck attorneys in order to solve these cases, preferably favorably of course. The expenses can be huge as the target of a lawsuit can be a large and well-established business. It is an always present vulnerability that these companies wish to be able to mitigate, understandably.

With the widespread use of smartphones and Wi-Fi, it is only a matter of time until your car is communicating with everything around it, hopefully stopping collisions before they can happen.

The NTSB Says Safety Should be Standard

The National Transportation Safety Board has a strong opinion on the subject, and it should come as no surprise to anybody. They have announced that they believe the government should force automakers to include every new accident prevention safety feature at their own cost. Some companies realize that people may not be willing to pay a markup for these features and so they exclude them during the manufacturing process. The NTSB believes that this should not be an option.

There is a danger in making new technology standard in vehicles before it is properly tested, but if it helps to save even one life, isn’t it worth it? That’s the debate that rages on in the automotive industry and most developers seem to be taking up the cause for the technology becoming standard. Most automakers immediately make their new technology standard in the vehicles when it is road ready. Whether or not this is because they wish people will remain safe or because they are just trying to sell some cars has yet to be seen. One thing is for sure though: if you are thinking about buying a new car, you could do worse than to look out for one with these safety features included.

Although safety features are extremely important, not all crashes can be prevented.  If you or a loved one has suffered serious injury or even death as a result of the carelessness of another driver, talk to a lawyer as soon as possible.  Millar and Mixon, Injury Attorneys is a law firm located in Georgia that specializes in injuries suffered during car accidents.  For more information about safe driving and car accidents, visit the website at www.MillarAndMixon.com.

Best Ways to Decrease Ice Build-Up on Your Sidewalks and Driveways

Ice build-up is a real problem during the wintertime. When ice builds up on your sidewalks and your driveways, it can become hazardous and can increase the chance of slips and falls. While it can be a hassle to deal with the ice build-up on sidewalks and driveways, decreasing this build-up is paramount for your safety. Here are some of the best ways to decrease ice build-up on your sidewalks and driveways to prevent injuries from falling.

 

Use Your Muscles to Get Rid of Ice and Snow

Sometimes there’s just no substitute for good, old-fashioned muscle. If you see ice and snow building up on your sidewalks and driveways, take a shovel, dress warmly and then manually shovel the snow away. The key to decreasing the inevitable build-up of ice after snowfall is to quickly shovel the snow away. If you let the snow just sit there, it will partially melt in the daytime, but then refreeze during the night when the temperatures are so much colder.

 

Use an Electric Snow Blower

If you’re incapable of shoveling snow for whatever reason, then you can always fall back on an electric snow blower to decrease ice build-up. Utilizing an electric snow blower beats relying on a gas-powered snow blower. While you will be using up electricity, you at least won’t be utilizing a machine that contributes to air and noise pollution. Remember, removing the snow shortly after it falls ensures that the snow can’t partially melt, refreeze overnight and then turn into ice build-up the next day.

 

Have You Ever Tried Coffee Grounds?

This is something of a folk-remedy approach to decreasing the ice build-up on your sidewalks and driveways, but it works! You’ve probably heard of sprinkling salt on the ground for traction and footing purposes. Spreading coffee grounds on the sidewalk after freshly fallen snow works in the same way. It will give you solid traction as you attempt to remove the snow by either shoveling it manually or using a snow blower on it.

 

Give Ice Clear a Try

Ice Clear is a product that will effectively decrease the ice build-up on your sidewalks and driveways. Another great thing about it is that it is 100 percent biodegradable and organic, without any corrosive salts or toxic materials. In other words, it’s environmentally friendly. The way it works is that it stops ice from bonding to either the sidewalk or the driveway, thereby making the removal of ice and snow more efficient. You can be preemptive by applying Ice Clear prior to a winter storm, so that ice doesn’t bond to the surface of the walkways. Alternately, you can apply Ice Clear after snow falls to melt ice and snow.

 

These are the four best ways to decrease ice build-up on both your sidewalks and driveways. There are many ways at your disposal for the removal of ice build-up. It’s always a good idea to decrease any ice build-up because it will be a hazard for you and your family that can potentially result in injuries.

 

If you have been injured because of another person’s failure to remove snow and ice on their property, contact a legal professional to review your case.  David Resnick & Associates, PC is a slip and fall law firm with experienced attorneys working for New York communities.  For more information about slip and fall accidents, visit the website at www.NYC-SlipAndFall.com.

Recall for Metal-on-Metal Hip Implants

hip replacementThere is an increasing risk for patients who have been fitted with a metal-on-metal hip implant, with recent orthopedic studies finding that 1 to 3 percent of patients need additional surgery to help with the pain and severe disability they feel after their metal-on-metal hip is implanted. It has gotten so bad that the Mayo Clinic has reported they have reduced the amount of metal-on-metal hip implants they use by as much as 80 percent from last year. Although none of the experts can seem to agree as to what the cause is for the defect, with many blaming design factors, metal and plastic combinations, and even patient immune systems, it is a reason for concern according to the Food and Drug Administration.

If you or somebody you love has had a metal-on-metal hip implant, then you should have them check their model to make sure it’s not one of these three metal-on-metal hip implants that have been recalled.

Smith & Nephew R3 Metal Liners of the R3 Acetabular System

This is the most recent metal-on-metal hip implant recall, and one of the largest. In June of 2012, Smith & Nephew Orthopedics got the ball rolling on a country-wide recall of the metal liners on their R3 acetabular system. The reason they gave for the recall was a higher than usual amount of revision surgeries required for patients after installation. When there are so many additional surgeries required, it means that a significant number of patients were having serious complications with the implant.

DePuy ASR XL Acetabular System

DePuy Orthopedics, a division of Johnson & Johnson, the world’s largest manufacturer of all-metal devices, issued a recall of their ASR TM total hip system. The reason behind the recall was a study that found that there was a 13 percent revision rate within 5 years. The recall was a black eye for Johnson & Johnson, and received coverage in most of the major media outlets that were more than eager to point out that the company was in ownership of DePuy.

Zimmer Durom Acetabular Component

Some recalls are done because of a faulty piece of equipment or a flaw in the manufacturing, but some are due to other reasons entirely. In 2008, Zimmer Durom had to issue a recall on their product because the instructions they provided for surgical use were found to be totally inadequate. When a company can’t get the instructions right, do you really want a piece of their equipment inside your body?

Product recalls are usually the sign of a company taking responsibility for a design flaw or a dangerous product that they have sold to consumers. It’s a good thing to get these dangerous products off of store shelves before an innocent consumer is hurt. But what do you do when the product that is being recalled is installed inside your body? That’s the question facing all the people who have metal-on-metal hip implants installed and see their brand come up on a product recall.

If you have suffered pain and injury because of a faulty metal-on-metal hip implant, then you may be able to receive a form of financial compensation from the manufacturer. Speak with your doctor and contact an attorney so that you can be properly informed of all of your options.  Philip DeBerard is a defective metal-on-metal joint replacement and product liability lawyer.  For more information about defective medical devices and recalls, visit the website at

www.FlaInjuryLawyer.com.

Injury Statistics for Motorcycle Crashes in North Carolina

motorcycle accidentsRiding a motorcycle can be a very freeing experience for the tens of thousands of people who use a bike as their main mode of transportation. Motorcycles aren’t without drawbacks though. The risk of serious injury increases significantly when riding a motorcycle. Many motorists are not used to sharing the road with motorcycles and are more likely to cut them off or sideswipe them. Motorcycles themselves offer no protection in an accident and the equipment that is worn can only offer minimal protection. How dangerous is riding a motorcycle? Below are some injury statistics for motorcycle crashes in North Carolina.

Does Riding a Motorcycle Increase the Chances of an Injury?

The National Highway Traffic Safety Administration has studied automobile accidents and has concluded that the rider of a motorcycle is 37 times more likely to die in an accident compared to the occupants of a standard car. In an average year there are around 96,000 people injured in motorcycle accidents across the country. The inherent problem with motorcycles is that even a small accident can result in a serious injury; you are more likely to suffer a long-term injury while riding a motorcycle than you are in any other mode of transportation.

Motorcycle Deaths in North Carolina

In 2008 the National Highway Traffic Safety Administration released a report on motorcycle accidents in the United States of America and found that out of the 5,290 motorcycle fatalities, 159 of those took place in North Carolina. A report put out by AAA studying motorcycle traffic fatalities by state found that in the first 9 months of 2010 there were 147 motorcycle fatalities, and in the first 9 months of 2011 there were only 116. Although the numbers are significant enough to be one of the highest by state, they are still decreasing. This could be due to more riders wearing safety gear or even motorists becoming more aware of motorcycle riders.

How to Protect Yourself

Although motorcycles themselves offer no protection, riders can still be protected by the equipment they wear. Wearing a motorcycle helmet can decrease the chance of death in an accident by as much as 29 percent and decrease the chance of a traumatic brain injury by 67 percent. Even though motorcycles are more dangerous than cars, you can still take precautions to protect your well-being while riding them.

In the state of North Carolina, 7.1 percent of all traffic fatalities come from motorcycle accidents and for every 10,000 people who ride a motorcycle 11.9 of them will be involved in a fatal accident. The numbers are hard to ignore; riding a motorcycle is a dangerous thing to do. However, there are steps you can take to protect yourself, such as wearing adequate safety gear and paying attention to other motorists. In case of an accident, it is necessary to make sure you are properly insured so that you can cover any medical bills that you may incur. Being safe should always be the top priority of any motorist, motorcycle riders included.

If you or a loved one have been injured or killed in a motorcycle accident as a result of another motorist’s negligence, seeking the advice of legal counsel is essential.  Hardison & Cochran, Attorneys at Law are motorcycle accident lawyers located in North Carolina.  For more information about motorcycle accidents and injuries, visit the website at www.LawyerNC.com.

5 Ways to Be Prepared in the Event of an Auto Accident

Regardless of how well or safe a person drives, there is always a chance of having a car accident. No one likes to think about this, however, the first thing to do is be as cool and collected as possible. This can be accomplished with some preparation beforehand. It is obviously traumatic, however, the ordeal will be much easier to handle if you consider the tips below and have certain things on hand, should a car accident occur.

1. Safety. The first and most important consideration is your safety and that of others. Move the vehicles to the side of the road if possible. Turn on the hazard lights of each vehicle so that other drivers can avoid the scene. To the extent you are able, check to make sure that passengers in your car and the other vehicle are alright. Call 911 immediately if it seems like someone could be seriously injured. Ensure that you carry an emergency kit in the car at all times that includes medical first aid items. Also have flairs, a blanket, water, flashlight and other essentials handy.

2. Accident Details. Once you have the car safely out of the way and ensured everyone’s safety, record what has occurred with a cell phone or other device. It is good to do this with both photos and video if possible. Then write down notes pertaining to the time of day, where you were traveling and how the accident occurred to your knowledge.

3. Witnesses. If anyone stops who may have seen anything, find out if they can stay until the police get there. Also take down notes about what they say they have seen, as well as all of their pertinent contact information.

4. Factual Evidence. It is very important to get all of the names, telephone numbers, addresses and insurance information from the other parties and provide yours to them. Doing this right away is also important in case any of the other parties should leave the scene before the police arrive. Write down information and take photos of the other vehicles involved and their license plate numbers. Also obtain the vehicle identification numbers in addition to all license plate numbers.

5. Following up. Ensure that a police report is filed and that you obtain a copy of it. Before filing an insurance claim, it is recommended that you contact a lawyer first to help you navigate the process. A prominent auto accident lawyer in West Palm Beach FL states that, “The Insurance Research Council reported that auto accident victims who had a lawyer, on average, received 3 ½ times more money than if they went it alone.” Though you are a client of the insurance company, keep in mind that they will be trying to minimize costs as much as possible. Having an attorney can help to ensure that you receive all that is necessary to recoup and repair damages. Ensure that you seek follow-up medical attention and do all that is recommended, including physical and mental therapy as may be necessary.

Having a car accident is not something anyone wants to even think about. However, taking some time to prepare for the possibility could provide peace of mind in knowing that if one should occur, you will have the necessary information to process a claim. If you or someone you know should become involved in a car accident, be sure to first make note of all of the facts. Contact a competent personal injury lawyer as soon as possible to ensure that your rights are protected and to recover damages for medical bills, repair costs, loss of income and other expenses.

Nickey Williams is an educator and writer from Mobile, Alabama. Steinger, Iscoe & Greene has an auto accident lawyer in West Palm Beach available day or night to explain your rights and options. They will help you get back on your feet and deal with the insurance company on your behalf.

Photo credit: http://www.flickr.com/photos/89619746@N02/8153022006/

The Division of Personal Injury Awards in a Texas Divorce

According to a divorce lawyer, property coming into the possession of one or both spouses is presumed to be marital property to be divided between them in the event of a divorce. Overcoming the presumption requires clear and convincing evidence to prove that property is the separate property of only one of the spouses with the help of a divorce lawyer as well. A personal injury award has been the subject of legislation and court decisions to decide if it is community property or separate property with the assistance of a family law firm. See this video for an excellent overview on what constitutes separate property in Texas.

The Texas Family Code Section 3.001

Texas Family Code section 3.001 categorizes an award or settlement for personal injuries as separate property belonging to the person receiving it. The exception in the statute is lost earning capacity during the marriage which is treated as community property, according to a divorce law attorney in case of divorce the property must be divided, and is when resources as a chicago divorce lawyer could be really helpful for this case of these situations.

Courts have ruled on the wording of Texas Family Code section 3.001 by declaring the following elements of a personal injury payment to be community property:

  • Loss of a person’s earning capacity during the marriage
  • Reimbursement for medical expenses incurred during the marriage
  • Damages to a person’s credit reputation

What if Award is Replacement for Earnings?

Other courts have declared disability insurance and workers’ compensation payments to be community property on the theory that such payments replace an injured person’s earnings, and a person’s earnings would normally be community property. Some courts have adopted a similar rationale in ruling that money received as compensation for damage to community property is to be considered as community property.

Court decisions have interpreted the Family Code to include the following elements of a personal injury claim as separate property:

  • Conscious pain and suffering
  • Mental anguish
  • Scarring and disfigurement
  • Compensation for the loss of the love and companionship of an injured spouse

Troublesome Lump Sum Payments

According to a family law attorney, problems may arise in cases involving a single payment for a personal injury claim with no allocation made as what it is paying. Courts treat such payments as community property unless it can be shown by clear and convincing evidence that the payment represents compensation only for the injuries sustained by the person. This can be an impossible hurtle to overcome if you don’t get an experienced family court attorney at https://www.familycourtlawyers.com/.

A person who anticipates receiving money in payment of a personal injury award and has concerns about the stability of a marriage should ask the the personal injury attorney to structure the award so the nature of the payment is clearly identified as compensation for the injuries and not lost wages or other items that would make it community property. This will make it possible for your divorce attorney to maximize your overall property division, if that later becomes an issue.