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Can a Lawsuit Settlement or Award Be Taxed By The Federal, Ohio, or Kentucky Governments?

Posted on Friday, August 24th, 2018 at 10:42 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Jennifer Tressler, who is pursuing her Juris Doctorate at The Ohio State University Moritz College of Law.

You have been injured. You have no idea how you are going to pay for your medical bills. You are not able to work right now because of your injuries, so your family has lost your income and is struggling financially. It is such an overwhelming time that you file a lawsuit, and—great news—you win a settlement large enough to cover all of your medical bills and allow you to provide for your family until you are able to get back to work.

dollarHowever, now you have new worries. You have won this large amount of money—but will the money from your injury settlement be taxed and taken away from you? Does this money constitute income in the eyes of the IRS? The answers to these questions are dependent upon the facts and circumstances of your specific case.

Generally, though, the IRS will not interfere with the allocation of funds provided that they are consistent with the substance of the claims in your settlement. Different types of claims are treated differently by the IRS, however, and how you should deal with the settlement money from these different types of claims will be briefly outlined here. If your settlement included multiple claims, the amounts pertaining to each claim will be treated accordingly with the rules for that individual amount. This means that if you receive $50,000 for personal physical injury and $50,000 for emotional distress, $50,000 will be regarded under the rules for personal physical injury or physical sickness and $50,000 will be regarded under the rules for emotional distress or mental anguish.

Personal Injury and Emotional Distress Lawsuits

If your settlement is for personal physical injuries or physical sickness and you did not take an itemized deduction for medical expenses related to the injury or sickness in the past, the full amount is non-taxable. You should not include this money in your income reporting. You must, however, include any portion of the settlement that is for medical expenses that you deducted in the past that resulted in a tax benefit. If part of the proceeds is for medical expenses you paid over more than one year, it must be allocated on a “pro rata” basis, or in proportion to the amounts paid each year. Talking to an experienced lawyer at Lawrence & Associates can help you figure out how to calculate the amount to report and fill out the correct forms.

If your settlement is for emotional distress or mental anguish originating from a personal physical injury or physical sickness, it is treated in the same way as a settlement for personal physical injury or physical sickness, which is listed above. If the emotional distress or mental anguish settlement you receive does not originate from personal physical injury or physical sickness from the accident, it must be included in your income reporting. This amount reported is reduced by the amount paid for medical expenses attributable to emotional distress or mental anguish not previously reported and by previously deducted medical expenses for emotional distress or mental anguish that did not provide any tax benefit. A lawyer can help you attach a statement showing these deductions to your return and fill out the necessary forms to document this.

Employment or Property Damage Lawsuits

If you receive your settlement in an employment-related lawsuit, the portion of your proceeds that are for lost wages is taxable and subject to the social security wage base, as well as the social security and Medicare tax rates in effect for the year the settlement is paid. They are subject to employment tax withholding, and a lawyer can help you report these in the appropriate places on your returns. If you run your own business and your settlement is for lost profits for your own trade or business, those proceeds are considered net earnings subject to self-employment tax and must be reported. A lawyer can help you navigate this more complex reporting and help you select the correct IRS forms.

If your settlement is for loss in value of property and is less than the adjusted basis of your property, it is not taxable and generally does not need to be reported on your tax return, although you must still reduce your basis in the property by the amount on the settlement. If your property settlement exceeds your basis in the property, the excess is considered income. A lawyer can help you determine if this applies to you and, if so, how much excess you must report. In addition, any interest on any settlement is generally taxable and needs to be reported.

The Different Treatment for Compensatory and Punitive Damages

Most of the money awarded to you in your settlement is considered compensatory damages, meaning that the money is intended to pay you back for your injuries. Compensatory damages compensate the injured party for their direct suffering (i.e. medical bills, lost wages, resulting health problems, etc.), and you had to prove that you suffered some type of monetary loss, how much the loss was, and that the other party was the cause of this loss. In contrast, punitive damages are intended to punish the wrongdoer, as well as serve as a warning or lesson to the rest of society. They exceed simple compensation. Punitive damages are only available in cases where the defendant is considered reckless or negligent. For example, in a car accident, punitive damages could be available if the defendant was driving drunk at the time of the crash. Punitive damages are always taxable and must be reported as income, even if they were received in a personal physical injury claim. Some settlements containing punitive damages require the recipient to make estimated tax payments on said settlement. A lawyer can help you determine if this applies to you, and if so, how much your estimated tax payments should be.

If you have questions about how your settlement will be taxed, please call Lawrence & Associates today for a free consultation at (859) 371.5997. We’re Working Hard for the Working Class, and we want to help you!


Cincinnati Area Tips and Tricks for Dealing with Insurance Companies After A Car Accident

Posted on Thursday, August 16th, 2018 at 4:07 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Dayna Wilson, a law clerk at Lawrence and Associates, who is pursuing her Juris Doctorate at Chase College of Law.

Getting into an accident is frightening. You may feel alone and unsure how to proceed after such a terrifying event. Who should you talk to? What should you say? Who is on your side? All these questions may be scattered in your head as you question who you should turn to. The first call you might get is from an insurance adjuster who wants to question you about your accident. At this point, you need an experienced attorney who can help you handle communications with the insurance adjuster to protect your rights. Insurance adjusters for liability insurance policies get annual training on the best ways to interrogate people in car accidents to avoid or minimize damages payable under the policy. Don’t be one of their statistics!

Should You Talk To Your Insurance Company After an Accident?

crashThe goal of your insurance company is to make the other driver’s insurance pay for damages to the vehicle. Although your insurance company is on your side, they are not paid or trained to pursue your claim against the at-fault driver the same way an attorney will. Your retained attorney will work on your behalf with your insurance company and the other driver’s insurance company to maximize your settlement. This is why it is important after an accident to contact an attorney so your rights can remain protected.

In addition, your insurance company has an obligation to pay for related medical bills after a car accident. These payments are called PIP payments in Kentucky, and Med Pay payments in Ohio. However, the adjuster often lives outside the Cincinnati area, and therefore doesn’t have the expertise to help you choose a doctor from the confusing army of medical professionals in the Tri-State area. In a similar vein, many primary care physicians are part of hospital networks that are pressured to refer within the hospital’s network, rather than to the doctor best equipped to treat your injury. One benefit of retaining an attorney early on is that an experienced personal injury attorney knows every doctor in the area, and has seen the outcome of their treatment on hundreds of patients. We know who to refer you to, and take pride in referring to the best medical professional for your condition!

Can An Insurance Adjuster Trick You Into Saying Something To Hurt Your Case?

When you are injured in an automobile accident, one of the first things that will happen is an insurance adjuster will contact you about the car accident. The adjuster may begin with some simple or innocent questions. Although the questions may seem innocent, the adjuster’s motives are not in your favor. Adjusters questions often include:

“Have you been involved in a previous car accident or other accident?”
“Are you the registered owner of the vehicle?”
“Was the weather a factor in the accident?”
“What happened?”
“Were you using a cell phone or any other electronic devices?”

The purpose of an insurance adjuster is to investigate and evaluate insurance claims. Adjusters decide whether an insurance company must pay and if so, how much. They conduct interviews, inspect property, and review police reports. The goal of the adjuster is to obtain valuable information to use during the claims process. While the information may seem reasonable, often any data collected is used against you to lower the value of your claim.

There are good reasons to limit your phone conversations with insurance adjusters when an adjuster calls you after an accident. Many adjusters will call frequently in an attempt to get you to settle quickly. In this case, if your injuries are minimal or nonexistent, it is permissible to talk to the other driver’s insurance company. The police report may place liability on the other driver. If this has occurred, communication with the other side may speed the claims process along.

Often, insurance adjusters will ask the victim to make a recorded statement. Remember an important rule: you should not provide an insurance company a recorded statement concerning the motor vehicle accident without having an attorney present. Simply put, the other side’s insurance company is not on your side, no matter how friendly or approachable they may seem. You can be completely honest about everything. However, later at trial, the insurance company may attempt to use any inconsistent statements between the recorded statement and the testimony at trial against you. Often, such inconsistent statements occur because your memory will fade between the recorded statement and trial, or because you won’t have known an important fact at the time of the recorded statement that you later learn before trial. Despite such reasonable explanations, the lawyer representing the insurance company many attempt to use this contradiction to make the jury question your credibility so that the jury will find for the defendant and not the victim. Having adequate representation will help prevent you from accidentally saying the wrong thing, or speaking about facts that haven’t been adequately investigated.

In addition to attempting to extract information to use against the victim and to get a recorded statement, the insurance company may also try to get the victim to sign a medical release form. These medical release forms allow an adjuster to get all of your medical records from every provider you have ever had. That is an enormous invasion of your privacy, and unjustified by any provision of Kentucky or Ohio law! It is important to keep the goal of an adjuster in the back of your head. They are there to reduce or eliminate your claim and protect their profits. If you provide recorded statements or sign medical releases prior to consulting with an attorney, there is a high chance that your claim will be significantly decreased.

How Can I Protect Myself If an Adjuster Wants to Take My Recorded Statement?

Individuals who have been injured in an automotive accident cases may choose to consult with personal injury lawyer. If you are seriously injured in an accident you should consult an attorney. An attorney can also help you if your own insurance company denies payment of your PIP or Med Pay benefits. Here at Lawrence & Associates we can handle the process of communicating with insurance companies so that you will not make a mistake that will negatively impact your case. We will handle the proper negotiations with the insurance company in order to pursue just compensation. If there’s even a small chance you could have significant injuries or damages, or the question of who caused the accident is in dispute, it’s probably smart to not speak with the other driver’s insurance company without legal representation.

Call our attorneys today for a free, confidential consultation if you need help. We’re Working Hard for the Working Class, and we want to help you!


Have You Been in a Car Accident?

Posted on Wednesday, August 8th, 2018 at 8:31 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Jennifer Tressler, who is pursuing her Juris Doctorate at The Ohio State University Moritz College of Law.

Learn How Damages Are Calculated in Cincinnati and Northern Kentucky Car and Truck Wreck Claims

Imagine for a moment that you are Maria. Maria was driving through an intersection when her car was struck by another vehicle. Maria suffered several severe injuries that required a significant amount of medical treatment. However, Maria’s insurance company would only cover a portion of her medical treatment costs.

Maria was at a loss for what to do, when someone told her to talk to a reputable personal injury law firm that might be able to help her. She was hesitant, thinking that filing a law suit might make create additional problems for her during what was already a very stressful and expensive time, but by choosing Lawrence & Associates, she realized she would not have to pay up front for her personal injury case! Her Lawrence & Associates personal injury attorney explained to her that her personal injury case would operate on a contingency fee, meaning that she would not have to pay any attorney’s fees or case expenses unless she won her case. Although Maria still had plenty of questions, her personal injury attorney was happy to answer them. The most important question for her, and maybe for you if you find yourself in a similar situation, was how much money she could expect to receive and when she would receive it.

How does a Greater Cincinnati area lawyer calculate or estimate how much money I get from my personal injury claim?

accountingThe first thing for you and your personal injury attorney to consider (because you are a large part of the settlement process!) is what a reasonable sum of money for you to give up your legal claim looks like. This varies from person to person, from situation to situation, depending on circumstances. Most insurance companies use mathematical formulas to calculate the amount of money they are willing to let go in the settlement, and your personal injury attorney will look at this formulaic process on the other side during the negotiations process. This is true regardless of what type of personal injury case you are bringing forward. This formula does not actually determine how much compensation someone receives, however. It is more of a tool that insurance adjusters use to begin the process of determining how much a claim is worth. Other factors must be considered before a final determination about compensation is made.

Once the settlement formula is applied, the insurance company will look at other legal and practical issues that affect your case. Some of these issues could include whether there is any shared fault for the accident, how organized and calm your demeanor is in relation to the claims and settlement process, whether the other side is credible or sympathetic, and any witnesses that may bolster your case. Because there are so many factors that go into how much your case will settle for, it is dangerous for attorneys to promise a high dollar settlement amount to their clients. Attorneys are held to very stringent ethical standards, especially regarding the handling of money and the representation of clients. Do not be afraid to check out your potential attorney on the state bar association’s website where the attorney is located to see if there are any ethical complaints or malpractice suits filed against them.

What is the damages formula and how does it work?

It is important to have a damages formula because, while it is usually fairly simple to add up money spent and money lost, there is not a precise way to put a dollar amount onto pain and suffering and missed or lost opportunities. The latter is what the damages formula calculates. The person found liable for an accident must pay the victim for medical care and its related expenses, missed work and other lost income, pain and other physical suffering, permanent physical disability or disfigurement, loss of family, social, and educational experiences, and emotional damages resulting from any of these losses.

To begin the original offer, an insurance adjuster will add up the total medical expenses relating to the injury, which are referred to as “medical special damages” or “specials.” To figure out how much to pay for emotional damages, permanent disability, and pain and suffering, which together are referred to as “general damages,” the insurance adjuster typically multiplies the amount of special damages times one-and-a-half to three times for relatively minor injuries and up to five times for especially painful, serious, or long-lasting injuries. Any lost income is then added to this number. This is usually the number where settlement negotiations with your personal injury attorney begin.

Two important things to remember about the damages formula are that, first of all, the figure arrived at is only the starting point for negotiations toward a final settlement amount. Other important factors about your accident and your injuries come into play as well. Secondly, because the starting formula can have a multiplier anywhere from one-and-a-half to five, or possibly even higher, considerably different numbers can be produced depending on where your case falls on the multiplier scale. Factors that influence where your case falls on the multiplier scale can include how painful your injury is, how invasive and long-lasting your medical treatment was, how obvious your medical evidence is, how long your recovery period is, and how serious and visible the permanent effects of your injury are.

Sometimes, your target settlement needs to be adjusted for your own fault. Kentucky is a pure comparative negligence state, meaning that the dollar amount of your award is reduced by your percentage of fault with no limits. Ohio is a modified comparative negligence state, meaning that your award is reduced by your percentage of your fault, and if your own fault is greater than fifty percent, you cannot win any damages, so the settlement value of your case is much less than your actual damages.

The last factor an insurance company looks at is whether you have retained a competent attorney. Injured people who have not retained counsel are often looked at as “not serious” about pushing the value of their claim, or unable to successfully push the value of their claim once litigation becomes necessary. This theory often bears true, because unrepresented injury car accident victims don’t know how to file and pursue a lawsuit in court. This means those unrepresented people are stuck with whatever the insurance company decides the value of the case ought to be, not what the injured person or a jury of his or her peers decides the value of the case ought to be. This is the reason that getting counsel as early as possible is important.

If you are overwhelmed by your personal injury accident, contact Lawrence & Associates today. We can help you navigate through settling with your insurance company to get you the award you deserve! Call today for a free consultation at (859)371.5997. We’re Working Hard for the Working Class, and we want to help you!


Underinsured and Uninsured Motorist Coverage and Why It is Important

Posted on Thursday, August 2nd, 2018 at 1:41 pm    

The following post is part of our Law Student Blog Writing Project, and is authored by Madelyn Stampley, a law clerk at Lawrence and Associates, who is pursuing her Juris Doctorate at NKU Chase College of Law.

UIM and UM Coverage: An Introduction

crashSadly, in today’s economy, a lot of Kentucky and Ohio residents are only able to afford car insurance with minimum coverage, or worse they are unable to afford car insurance at all. When one of these underinsured or uninsured drivers are at-fault for a motor vehicle accident that caused you injuries, underinsured (UIM) and uninsured (UM) motorist coverage allows you to fully recover. Securing an attorney for your UM or UIM claim is crucial to just compensation for your harm and damages.

Can I Still Get Compensation from a Motor Vehicle Accident if the Other Party in the Accident Does Not Have Insurance?

Both Kentucky and Ohio law allow you to get compensation from a motor vehicle accident if the other party in the accident does not have insurance. Uninsured motorist coverage provides protection when you are in a motor vehicle accident and the responsible party does not have auto insurance and this cannot cover repairing your car or covering your medical bills and lost wages. UM is important because it is the only way to know your damages are covered in an accident with an uninsured motorist. An uninsured motorist is more likely than not uninsured due to not having the funds to afford auto insurance. If they do not have the funds to afford insurance, they most likely do not have enough money to cover expensive medical bills, lost wages, and your automobile repairs.

Why Is It Okay to File an Uninsured Motorist Claim?

An uninsured motorist claim can help ensure your medical expenses (medical bills, lost wages, and pain and suffering) are paid for when you are in a motor vehicle accident with an at fault driver that does not have auto insurance. It is not only okay, but it is recommended to have uninsured/underinsured coverage. In some states uninsured motorist coverage is mandatory, although in Ohio and Kentucky it is only optional. Uninsured motorist coverage also covers you if you are the victim of a hit-and-run accident.

What is Underinsured Motorist Coverage and How Can It Protect Me?

Underinsured Motorist Coverage, or UIM, provides you protection when you are in a motor vehicle accident and the at-fault driver does not have enough auto insurance coverage to fully cover repairing your cap or covering your medical bills, pain and suffering, and lost wages.

For example, let’s say you are a Kentucky resident in a motor vehicle accident that accrues $200,000 worth of damages. The at-fault driver has insurance, but it only covers $100,000 of the damages. In this case you can make an underinsured motorist claim against your own insurance policy. If you had $150,000 in underinsured driver coverage, you would settle with the negligent driver for $100,000, and would settle with your insurer for an additional $100,000. Your auto insurance policy is required to cover all the damages you have that exceed the amount covered by the at-fault driver’s policy, up to the limit of the UIM coverage reflected on your auto insurance declarations page.

In contrast, in Ohio your available UIM coverage is based on the difference your UIM limits and the underinsured driver’s liability limits. For example, if the underinsured at-fault driver has $25,000 in liability limits, and you have $100,000 in UIM limits, you would be able to collect up to $75,000 from your own UIM policy ($100,000 – $25,000 = $75,000). This is because Ohio law allows a UIM policy to be offset by the at-fault driver’s liability coverage, instead of requiring that UIM coverage stacks on top of the liability coverage as it does in Kentucky.

How Do I File an Uninsured or Underinsured Motorist Claim?

If you are in a motor vehicle accident, it is important to start taking the proper steps immediately to make sure your claim goes your way. Generally, you will know if the at-fault driver is uninsured once the police are called to the scene after the accident. On the other hand, knowing if the at-fault driver is underinsured tends to be more difficult and time-consuming. It can take a while, sometimes several months, to determine the amount of money needed to cover the damages due to the motor vehicle accident. Once this amount is calculated, the at-fault driver’s insurance will cover as much as their policy allows. After the insurance limits are reached, you should contact your insurance company or attorney to file an underinsured motorist claim.

The key to filing either of these claims is acting swiftly to make sure claim runs smoothly due to a lot of car insurance policies having limits on how many days you have to report the claim. Once you have filed your claim, there will be pretrial investigation, disclosure of medical records, and settlement discussions. Generally, the insurance company and your attorney will discuss and negotiate the best possible settlement for you.

The Importance of Securing an Attorney for your UM/UIM Claim

Due to financial struggles, a lot of Kentucky and Ohio residents decide to purchase auto insurance policies with minimum coverage. A shocking amount of people also decide to forego auto insurance completely. To ensure your insurance covers your medical bills, lost wages, pain and suffering, and vehicle damages during a motor vehicle accident with an uninsured or underinsured driver, it is important to have UM or UIM coverage. If you find yourself post-car accident unsure how to make sure all your damages are covered, securing an attorney is the best way to proceed. Having an attorney during this process will ensure that you will have the best possible result and have your damages covered. If you decide to not obtain uninsured or underinsured motorist coverage, you are driving at the mercy of everyone on the road who does not have insurance or is underinsured. While it may be more expensive, you should view it as a stress taken off your shoulder knowing that you have enough insurance coverage to cover medical bills, lost wages, pain and suffering, and car repairs.

If you have been in a Car Accident in any state, or if you have any other questions about Underinsured or Uninsured Motorist coverage, please call our Fort Mitchell, Kentucky office at 859-371-5997 or our West Chester, Ohio office at 513-351-5997. We successfully resolve hundreds of cases every year for people who are in your shoes. We’re Working Hard for the Working Class, and we want to help you!


The Personal Injury of Never Playing Again: Damages for Athletes in Southern Ohio and Northern Kentucky

Posted on Tuesday, June 5th, 2018 at 8:32 am    

The following article was written by William Doering, a former law clerk at Lawrence and Associates. Doering is currently a student at Chase Law and pursuing a Juris Doctorate.

Personal injury cases happen all the time. Most are run-of-the-mill in terms liability and damages. However, there are always extraneous circumstances where damages can be more complex. Each individual plaintiff will require a different amount and type of damages depending on the facts of the accident and the plaintiff’s life circumstances. After accidents, plaintiffs are concerned with being able to do the activities that they were able to do before the accident. Plaintiffs who are no longer able to do certain activities following a personal injury accident may be compensated for that loss. For many, playing sports is an activity that plaintiffs lose the ability to do after an accident.

Suppose for instance that you are an athlete who has just been in a motor vehicle accident. The injury caused by the negligent third party has left you unable to play your respective sport. Damages are proper to help pay for the value of your damaged vehicle, your medical bills, and future treatment. However, you also have the ability to claim damages for being unable to play sports in the form of loss of enjoyment of life. We’ve previously written about damages on several occasions. This blog will describe the basics of personal injury damages, explain the purpose and function of loss of enjoyment of life damages, then describe damages for pro and semi-pro sports players, and discuss how to claim these damages in a tort lawsuit in both Kentucky and Ohio.

What Kinds of Damages Are Allowed in Kentucky and Ohio?

In all successful tort claims, plaintiffs will be able to claim compensatory damages. These can be either general damages or special damages. The American Jurisprudence defines general damages as “those that are the natural and necessary result of the wrongful act or omission asserted” in the complaint. These damages compensate the plaintiff for any loss, injury, or damage such as property damage or medical bills resulting from an accident. Special damages, sometimes called hedonic damages, are another form of compensatory damages. These damages encompass “damages for a harm other than one for which general damages were given.” Special damages can include expenses like loss of enjoyment of life, loss of consortium, pain and suffering, lost wages, mileage, or lost profits.

When claiming special damages, plaintiff must show that they received a great deal of bodily harm; past what general damages can cover. Special damages are calculated separately from one another depending on the jurisdiction; i.e. loss of enjoyment of life will be judged as a separate and distinct category of damages from pain and suffering. Kentucky does not recognize loss of enjoyment damages as a separate claim. However, loss of enjoyment damages may be considered as evidence in determining the severity of injuries, general damages, or pain and suffering. In limited circumstances, Ohio does see loss of enjoyment damages as a separate claim. The reasoning is that Ohio courts see loss of enjoyment damages as a loss of positive experiences rather than an infliction of negative experiences. In calculating loss of enjoyment damages, Ohio limits recovery to circumstances of the injury that were not already addressed in the general damages. This ensures that there are no excess damages awarded to the plaintiff.

What Special Damages Do Kentucky and Ohio Allow Professional Athletes to Claim?

Claiming damages for inability to enjoy sports requires a showing that the harm suffered resulted in a “loss of ability to engage in sports or recreational activities, … loss of a desired vocation or avocation, loss of use of a limb, … or miscellaneous losses” as the court deems fit. A plaintiff must have “developed the ability to perform a pleasurable activity or hobby specifically identified to his or her lifestyle.” There must be an adequate showing that the plaintiff regularly participated in and enjoyed the activities which they can no longer do because of the injury suffered.

If the plaintiff is an athlete with potential to play college, semi-professional, or professional sports, that factor is taken into consideration. However, this type of predictive futures damage is harder to prove. Courts err on the side of caution before awarding these damages because they must be a precise as possible. Not every person injured in a car accident will make it to the pros. Thus, not all plaintiffs should be able to claim these extra damages for potential lost financial damages. Courts will only rule in favor of extra damages in this manner if an athlete was already playing sports at a higher level or if they were certain to play them and have some form of monetary gain from playing them in the near future.

Loss of enjoyment damages are real damages that can be claimed from a personal injury accident. Courts in Kentucky and Ohio allow for them to be claimed following an injury; they are just argued differently. If you have been injured due to someone else’s negligence and can no longer enjoy playing sports, you can be compensated for this loss of enjoyment. Make sure to talk to a legal professional about your options if you think you can claim these damages. The legal system may not get you back to playing sports again but it can fairly compensate you for the loss of those positive experiences in life.

Are you a pro or semi-pro athlete that has been injured in an automobile accident or as a result of someone else’s negligence? Don’t go it alone! Lawrence & Associates has helped thousands of people recover for their injuries, and we know how to fully recover for your damages. We’re Working Hard for the Working Class, and we want to help you!


Why You Shouldn’t Feel Bad for Filing a Personal Injury Lawsuit

Posted on Thursday, May 31st, 2018 at 8:28 am    

At the time I’m writing this, I’ve been in practice for over 13 years, and I’ve filed thousands of personal injury lawsuits in Ohio and Kentucky for everything from car accidents and slip-and-falls to products liability and boating accidents. I’m proud of what I do. I get a lot of injured people medical treatment that they’d never have gotten otherwise. I help widows keep their homes. I help hard working men and women get the money to pay back the debts they incur while they’re off work and recuperating from surgeries. But no matter whether I’m in Kentucky or Ohio, no matter who is across the desk from me at a consultation, there is one comment I hear more than any other: “I’m not the kind of person that normally sues people.”

This comment never fails to amaze me. There isn’t a kind of person that sues people. Personal injury lawyers don’t get repeat customers. On the rare occasion that I have seen the same person back in my office, I don’t think I’ve ever seen more than two lawsuits. But more than that, “I’m not the kind of person that normally sues people” speaks to a kind of shame associated with the civil justice system. 
“I’m not the kind of person that normally sues people” means that nearly everyone who walks into my office thinks only bad people sue other people. We all know that doesn’t hold water. We’ve all driven past accidents where the ambulance is already removing a driver that was rear ended or t-boned; do we really believe the guy in the ambulance is a bad person for suing the one who put him there?

But really, the ridiculousness of “I’m not the kind of person that normally sues people” goes deeper than that. There are a lot of reasons that lawsuits are good things, so long as they are handled by good lawyers. That so many people don’t understand that speaks to a long history of disinformation about the civil justice system, including things like the myth of the McDonald’s Hot Coffee and a series of widely believed email forwards from the early 1990s. When you set aside falsehoods and think about it, there are many reasons you should file a personal injury lawsuit if someone else hurts you.

It’s Your Constitutional Right, and It’s Better Than Any Alternatives

Today, many politically minded people swear by the founding fathers. The original meaning behind the Constitution, both federal and state, is the cornerstone of Libertarian and most Conservative political theories, and in the Greater Cincinnati area where I practice, a large percentage of registered voters identify as Libertarian, Republican, or Conservative. On top of that, in this area it is typically Democratic elected representatives that are the staunchest defenders of the jury trial system. With that in mind, it is worth remembering that the Seventh Amendment in the Bill of Rights to our federal Constitution states:

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

Section Seven of Kentucky’s Constitution goes further, saying:

“The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.”

Section Five of the Ohio Constitution states:

“The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

There is a reason the founding fathers of every state, and of the federal government, made sure to enshrine the jury trial system: it provides for a peaceful resolution of conflicts while making sure the wrongdoer – the one that hurts, the one that takes, the one that breaks – is brought to justice. Prior to the jury trial system, it was common for people to fight duels, or for might to make right. Today, lawsuits are common and duels don’t exist. No one dies over defamation, or for being an inattentive driver. And no one should get away with it either. The beauty of the lawsuit is that it brings peaceful justice for men and women that have been wronged. Without it, we’d be back to the kind of 18th century justice our forefathers fought to prevent.

Everyone Is Insured (and If They Aren’t They’re Breaking the Law)

That was all well and good for the 1700s, you might say, but does it really apply today? Yes, and even more so than it did when the Constitution was written. Back then, a defendant losing a lawsuit might have to pay a princely sum of money; maybe enough to have to mortgage the family farm, or lose a business. Today, that fear doesn’t apply because almost everyone and everything is insured.

The most familiar form of insurance is auto insurance, which all Americans are required by law to get, but it isn’t the only kind. There is property insurance, general liability insurance, homeowner’s policies, farmowner’s policies, malpractice insurance, umbrella policies; you name it, and the insurance industry already thought of it thirty years ago. All those insurance policies not only mean that no one has to sell their house because they lost a lawsuit, but they also change the very nature of filing a lawsuit.

Let’s take automobile insurance as an example. An insurance policy is a contract. The insurance company says they will cover a driver for a specific amount of money if he or she causes an accident, and in exchange they want a certain amount each month as a premium. Let’s say that driver pays the premiums, and a few months down the line, rear ends you while you’re driving your car. You’re taken away by ambulance, and later file a lawsuit to cover your medical bills and the wages you missed while being off work.

When you file that lawsuit, you aren’t saying you want the other driver to pay you. You’re saying you want the insurance company to honor its contract. The money doesn’t come from the other driver’s pocket. It comes from the insurance company. The insurance company took the premiums, and they are supposed to pay for the damages. The lawsuit only happens if they don’t honor their contractual obligations. Feeling guilty for forcing an automobile insurance company to honor its contractual obligations makes no more sense that feeling guiling for forcing your health insurance company to pay for medical bills.

Lawsuits Help Your Doctor and Health Insurance Company Get Paid, Too

It’s worth bringing up another common myth about lawsuits: the money doesn’t really all go to the injured person. Yes, they take some home and yes, the attorney gets paid. But most people don’t realize that doctors often receive money as a result of a successful Workers’ Compensation lawsuit by an injured person against an insurance company. Also, every successful lawsuit against an automobile insurance company like Statefarm means a health insurance company like Humana gets reimbursed for the bills they paid. The logic is simple: one person or company caused the harm, and that person or company should pay for the harm. A doctor should not bear the burden of medical bills that cannot be paid, any more than the injured man or woman should bear the burden of being unable to put food on the table while they recover from surgery. A lawsuit against someone that is liable for negligence helps many people, not just the person hurt by the negligence.

Lawsuits Make Everyone Safer

We’ve all seen warnings that you can’t believe had to be printed, like a ridiculous commercial that tells you not try some obviously stupid act at home. It’s all the lawsuits, people think, that made that dumb warning appear. This is a part of the myth of the lawsuit too – do a little research and you’ll usually find that no one ever tried to sue over whatever dumb warning you saw. Generally, they are a part of an overabundance of caution on the part of companies that never bothered to ask a lawyer if they could be sued in the first place.

But some warnings do appear because of lawsuits. Like the warning that cigarettes can cause cancer, or that taking too much Tylenol can be fatal. Lawsuits also brought us the fire escape, the seatbelt, and the safety stop on saw blades. When used properly, the lawsuit is a force for good and drives the creation of new technology and new processes that make all Americans safer for decades to come.

It isn’t that there aren’t bad lawsuits. There are. Sometimes unhappy people file lawsuits on their own without a lawyer, which is generally a recipe for disaster. Sometimes bad lawyers with bad goals file bad lawsuits. But those lawsuits are the rare headline grabbers that cast a shadow on the good lawsuits, good lawyers, and good people who have been hurt through no fault of their own. If you have been hurt, and know someone else is at fault, don’t let the myth of the bad lawsuit cause you to deny yourself your right of recovery. If you’re a good person, get a good lawyer and get the justice you deserve.

If you have any other questions about Personal Injury or Workers’ Compensation lawsuits, please call our Fort Mitchell, Kentucky office at 859-371-5997 or our West Chester, Ohio office at 513-351-5997. We have helped over 3,000 clients and help a new, deserving person every day. We’re Working Hard for the Working Class, and we want to help you!


The Intersection of Personal Injury and Bankruptcy: What Happens When Your Personal Injury Claim Intersects with the Defendant’s Bankruptcy

Posted on Tuesday, March 27th, 2018 at 9:53 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Thomas Rovito, who is pursuing his Juris Doctorate at the Ohio State University.

Note from editor: This article discusses federal law and cites to sources outside the Cincinnati and Northern Kentucky area. If you live in Cincinnati or Northern Kentucky, you can review Kentucky specific case law at our article for the Advocate, which is re-printed here.

 

Consider the following hypothetical. You are driving your car on the way to work, and you get t-boned at an intersection. You, as plaintiff, commence personal injury litigation against the other driver, as defendant, but in the midst of this litigation, the defendant driver files for bankruptcy as a debtor. Do you lose your lawsuit, or what do you have to do to keep the lawsuit alive?

While this situation is not the norm, bankruptcy attorneys do come across a few cases that fit the above fact pattern. And some of those attorneys have drafted white papers to facilitate knowledge on the process of preserving the plaintiff’s claim, such as the standout article by Jeffrey Traurig, “Defendant in Personal Injury Action Files for Bankruptcy – Now What?,” as well as “Scheduling and Protecting Personal Injury and Other Causes of Action in Bankruptcy Cases,” and “How Bankruptcy Affects Personal Injury Lawsuits.”

First, upon the debtor-defendant’s petition for bankruptcy, the bankruptcy court will grant an automatic stay to the personal injury litigation pursuant to 11 U.S.C. § 362(a). This stay will pause external litigation during the course of the bankruptcy proceeding. Once plaintiff’s counsel is on notice (either through being filed and served through the court of the personal injury claim or bankruptcy court, hearing from the client, or learning through a publication), the plaintiff’s counsel must obey the stay, as actions taken in violation of the stay “are generally void,” and are possibly punishable with sanctions from 11 U.S.C. § 362(k). The plaintiff’s attorney should monitor any bankruptcy filings or notices to note any changes to the automatic stay or any determinations that would result in claim or issue preclusion.

It also matters what kind of bankruptcy the debtor is seeking from the bankruptcy court. For instance, if the debtor is petitioning for a Chapter 7 liquidation, then plaintiff’s counsel should timely file a “proof of claim” against the debtor’s estate. According to Traurig, a timely filing means “a proof of claim must be filed before the proof of claim deadline regardless of whether a claim is scheduled as undisputed.” A claim, under 11 U.S.C. § 101(5), is a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” The “proof of claim” must be presented on the official proof of claim form pursuant to Federal Rules of Bankruptcy Procedure 3001 to the bankruptcy court, which is a necessary precondition to receive disbursements from the debtor’s estate. To improve the relative chances of success, the plaintiff should attach legal documentation, such as the summons and complaint (ideally with medical records and evidence of damages) against the defendant. Plaintiff’s counsel should be vigilant for any bankruptcy filings or public notices regarding the proof of claim deadline, and seek to preserve and present any credible evidence of the plaintiff’s injuries.

Another possible move plaintiff’s counsel could make to ensure timely compensation for his client is to petition the court to modify the automatic stay through 11 U.S.C. § 362(d). As the bankruptcy automatic stay may last years, it may delay compensation for the plaintiff; however, 11 U.S.C. § 362(d)(1) allows “[o]n request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—(1) for cause. . . .” It is important to note that “cause” is not defined in the relevant section, and that the various circuit courts have applied different factor based tests to evaluate whether there is “cause.” As noted by Traurig, courts may consider whether the debtor was insured and how much the debtor would pay during the cause evaluation:

Because prejudice against a debtor is one of the primary factors in any balancing test, one of the factual issues that weighs heavily in determining whether the automatic stay should be lifted for a personal injury action to proceed is whether insurance is available to satisfy the claim and whether the debtor would be required to pay defense costs or deductibles. If a debtor has sufficient third party commercial coverage with no deductible (or a deductible that has already been met) and if the insurance carrier is responsible for all defense costs with no premium adjustment, it is likely that a bankruptcy court would authorize the lifting of the automatic stay to permit the claimant to proceed against insurance.

On the other hand, if the debtor is responsible for defense costs and deductibles, or if insurance will not satisfy the claim in full, the court will need to balance the factors to determine whether the stay should be lifted, including whether there is a likelihood that pre-petition unsecured creditors will receive distributions in the bankruptcy case and the ultimate need for the claim to be liquidated, as well as whether the claimant will agree to waive claims against the debtor’s estate if insurance is not adequate.

Thus, if the preconditions of 11 U.S.C. § 362(d) are met, and the defendant has insurance and would be subject to minimal cost, then there is an enhanced possibility of the bankruptcy automatic stay being modified.

An additional complication concerns the statute of limitations for the plaintiff’s claim and the imposition of the automatic stay. According to Traurig, while the statute of limitations “may” be extended, it “is not tolled.” Thus, plaintiff’s counsel should keep an eye on whether the statute of limitations is running down, and whether plaintiff’s counsel could file within 30 days’ notice of the termination of the automatic stay, pursuant to 11 U.S.C. § 108(c).

Thus, as Traurig concludes, the key to keeping your claim alive at the intersection of personal injury and bankruptcy is to ensure:

[T]hat proper steps be taken to ensure that a claimant’s rights are protected and that the attorney is properly representing the client, including ensuring that a proof of claim is timely filed and that the statute of limitations does not expire after the termination of the stay. Attorneys should also consider whether they should actively seek to modify the automatic stay to proceed against insurance while the bankruptcy is pending and should review notices and other pleadings filed in the bankruptcy case to ensure that orders are not entered that impair the ability to proceed against available insurance and should consider monitoring the docket in the bankruptcy case.

If you’ve been hurt in an accident or need to file bankruptcy, don’t go it alone! Lawrence & Associates offers free, confidential consultations and has helped thousands of people in Cincinnati and Northern Kentucky. We’re Working Hard for the Working Class, and we want to help you!


A Northern Kentucky Tragedy, and What a Car Accident Lawyer Should Do

Posted on Wednesday, November 29th, 2017 at 1:02 pm    

By now, everyone is familiar with the tragic accident that took the lives of Rodney Pollitt, Samantha Malohn, and their three children. Because this firm represented Mr. Pollitt and several members of Ms. Malohn’s family in the past, the news hit us especially hard. When lawyers are at their best, they seek justice. In one way, justice is already coming for the man that caused this tragedy. Kenton County Commonwealth Attorney Rob Sanders will charge the other driver with five counts of murder for his role in the collision. That is criminal justice, but Lawrence & Associates is in the business of civil justice.

The civil justice system is the process of suing for money. That can be a lawsuit over injuries or deaths, such as what happened to the Pollitt family, or business suing each other over contracts, or many other things. There are a few forms of civil justice that might apply to the tragic deaths of the Pollitt family. First and most obvious, the driver of the other vehicle probably had automobile insurance that would cover the accident, although that might be as small as $25,000.00, the state minimum limit. Second, the Pollitt family’s car insurance should provide coverage, in the form of Uninsured Motorist Coverage if the other driver didn’t have insurance, or Underinsured Motorist Coverage if the other driver just didn’t have enough insurance. Third, and less obvious, a qualified law firm would do a complete background check of the other driver to find out whether he had any other insurance coverage that would cover the collision. For example, many people with high paying jobs or lots of assets will get an “Umbrella” policy that will provide another million dollars of coverage (or more) in the event of tragic losses. Uninsured, underinsured, and umbrella policies are where many people make mistakes when they try to handle their own insurance claims. If the family is too quick to sign off on the first $25,000.00 in coverage, they may accidentally waive their right to any additional insurance coverage.

In addition to the insurance for the at-fault driver and the deceased family, a good law firm needs to look into a Dram Shop claim against the golf course where the at-fault driver was allegedly drinking before the collision. A dram shop claim arises whenever a bar or similar business sells alcohol to a visibly intoxicated person, or to a minor. At this time, news reports have not covered this possibility, and so we don’t know whether the golf course might be liable under the dram shop laws. But given the scope of this tragedy, the possibility should be investigated.

Finally, an accident investigator should pull the black box from the at-fault driver’s car and inspect all the major mechanical systems. Almost all newer model cars now have a (black box [https://www.merriam-webster.com/dictionary/black%20box]), which records all the driving data up to the point of a collision. It will tell speed, whether the brakes were hit, how the steering wheel was turned, etc. There is always an outside chance that the at-fault driver’s car had some malfunction that prevented him from steering or braking. If so, that doesn’t necessarily absolve the at-fault driver from liability, but it could lead to additional liability for the car manufacturer, or anyone that had recently worked on the mechanical system that failed.

Both criminal and civil justice are important, and Lawrence & Associates hopes the surviving members of the Pollitt family get full justice through the American Courts of Law.


The Difference Between Underinsured Coverage for Kentucky and Ohio Residents

Posted on Thursday, October 19th, 2017 at 7:29 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Raphael Jackson, a law student from the Chase School of Law.

Being involved in an automobile accident can be a trying experience. Even long after the accident, negotiating with insurance providers is often a major source of stress for either party involved. Given the stress of the situation it is a common temptation for the insured to agree to a quick settlement, regardless of how unfavorable it might be, simply for the sake of moving forward. In order to prevent such a situation, it is important to be fully informed of your rights and responsibilities, as well as the rights and responsibilities of all parties involved.

Uninsured and Underinsured Motorist Coverage

According to a 2014 study conducted by the Insurance Research Council, one in eight drivers in the United States are uninsured.  In the Commonwealth of Kentucky, nearly 16% of all motorists are uninsured. In the state of Ohio, the number of uninsured drivers is approaching 14%. This means that if you are injured in an automobile accident in Kentucky or Ohio, you run a 14% and 16% chance, respectively, of having to deal with a party who is uninsured.  In order to protect themselves from such a scenario, many drivers purchase Uninsured Motorist coverage (UM). UM is offered as a standard on every insurance policy. It can, however, be waived by request.

Another scenario you may experience is being involved in an accident with a driver who has insurance but doesn’t have enough insurance to cover the property damage or personal injury caused to themselves or others. This category of insured drivers is commonly known as underinsured motorist coverage, or (UIM). Whenever a claimant makes a claim against her own insurance this is also known as a first party insurance claim.  Remember this important difference:  both an uninsured claim and an underinsured claim are claims made against your own insurance policy, but an uninsured claim is made when the at-fault driver had no insurance, while an underinsured claim is made when the at-fault driver didn’t have enough insurance.

Ohio vs. Kentucky Handle No-Fault Benefits Very Differently

Some states require insurance companies to compensate the injured for medical expenses and/or lost wages regardless of who was at fault in the accident. States which enforce this regulation are known as no-fault states. Other states follow an insurance arrangement in which one party is assigned most of the blame of the accident. The party to which the blame was assigned is then legally liable for the damages. This is known as a tort system.

Ohio follows the tort system, which operates on the theory of comparative negligence. Comparative Negligence, for insurance recovery purposes, means that if one party is more than 50% responsible for the accident then that party is not entitled to damages.

If you are involved in an automobile accident in Kentucky, you are not required to prove that the other driver was at fault in order for you to be compensated by your insurance company. In no fault states the portion of the insurance that covers the expenses is known as Personal Injury Protection or PIP. PIP covers motorists and pedestrians injured by motorists. Fault notwithstanding, basic PIP in Kentucky provides up to $10,000 per person per accident, for any “out of pocket” costs due to an injury. Any insurance policy that you purchase in Kentucky automatically comes with PIP coverage. Thus, all insured motor vehicles in Kentucky are required to have basic PIP coverage.

Basic Insurance Coverage Rules in Ohio

Ohio does not directly require a motorist to purchase automobile insurance, however Ohio requires all drivers to have “proof of financial responsibility,” which proves that they can pay for injuries or damages to others if they cause a car accident. Proof of financial responsibility can be, and is typically satisfied when the motorist purchases the minimally required Bodily Injury Liability coverage and Property Damage Liability coverage. The minimum bodily injury coverage in Ohio is $25,000 per injured, per accident, and $50,000 for all persons injured in any one accident. The required minimum for Property Damage Liability coverage is $25,000. In the event that the damage exceeds the minimum insurance coverage you can be held personally, legally responsible for any amount which exceeds your policy limits.

For the UIM insurance holder, any damages remaining in excess of the basic policy limit will trigger the UIM insurance, and the UIM will cover the difference between his or her UIM limits and the underinsured driver’s liability limits.  UIM insurance typically covers the driver along with his vehicle. The insured is entitled to this coverage whether she is involved in an accident as a driver, passenger, or pedestrian. The insurance policies may cover family members related through marriage and or legal adoption. However, the primary insured may not cover any other family members who have purchased their own insurance policies independent of the primary insured. Passengers can also be covered under the primary UIM insurance policy; the insured must review the specific language in order to determine how UIM coverage can be applied.

Basic Insurance Coverage Rules in Kentucky

The requisite insurance coverage for all ensured motor vehicles, with the exception of motorcycles, in the Commonwealth of Kentucky is PIP. PIP, or personal injury protection, offers up to $10,000 per insured per accident. In order for the injured party to recover any medical expenses, the medical treatment for the injuries they sustained must be in the excess of $1,000.

Assuming that both drivers, or driver and pedestrian, are both minimally insured, then the question arises is who is responsible for paying the PIP.  Regardless of whoever is at fault in the collision, if a pedestrian or a cyclist is struck by an automobile, then the PIP insurance from the automobile involved in the accident is also extended to that cyclist or pedestrian.  Kentucky Law provides that the statute of limitations for an action for PIP benefits is two years from the time the person suffers the loss of wages or incurred the medical bills caused by the accident.

As mentioned earlier, if you are involved in an automobile accident in Kentucky or Ohio you run a 14% and 16% chance, respectively, of having to deal with a party who is uninsured. In order to protect themselves from such a scenario, many drivers purchase Uninsured Motorist coverage (UM). UM is offered as a standard on every insurance policy. It can, however, be waived by written request.

Do You Need a Lawyer to Access Auto Insurance Coverage?

If you have been involved in an accident and are attempting to make a first party insurance claim, it may be wise to seek legal assistance in creating your claim. Although they theoretically exist to work for your benefit, insurance companies are ultimately profit seeking corporations. It should be of no surprise that minimizing their corporate expenses may take precedent over satisfying your claim in full. It is not uncommon for an insurance company to either deny a claim or attempt to make a quick settlement which may not cover all of your expenses. As mentioned earlier many people find that the stress of attempting to make an insurance claim, with an insurance company who is reluctant to fulfill their contractual obligations, more stressful than the actual accident that they have recently been involved in. This is why it is important to ensure that you can properly negotiate your options and receive the full amount you are entitled to. One way of ensuring this is to speak to an attorney. An experienced attorney will be able to navigate the complicated process and conduct favorable negotiations on your behalf.

Have you been injured in a car accident and need help?  We can provide the service and customer satisfaction you need.  Call one of our attorneys for a free consultation today.  We’re Working Hard for the Working Class, and we want to help you!


When can a business be held liable for an independent contractor’s negligence?

Posted on Friday, September 22nd, 2017 at 11:46 am    

The following post is part of our Law Student Blog Writing Project, and is authored by Sam Hoops, who is pursuing his Juris Doctorate at the University of Kentucky.

In Pusey v. Bator, the court wrestled with the issue of whether a business can be held liable for an independent contractor’s negligence. Although the general rule regarding employer liability for negligent acts of a contractor acknowledges that the employer should not be held vicariously liable, the court here relied on an exception to the rule stemming from the “nondelegable duty doctrine,” specifically the “inherently-dangerous-work” criteria. The majority ultimately determined that the corporation could be held liable should the jury find that the independent contractor acted negligently.

In Pusey, Greif Bros. Corp. (“Greif”), a steel drum manufacturer, owned and operated a manufacturing plant in Youngstown, OH. After several incidents of theft, Greif hired Youngstown Security Patrol (“YSP”) to “deter theft and vandalism.” Although the contract between Greif and YSP did not specify whether YSP guards would be armed or not, the superintendent of Greif had knowledge that YSP guards often carried a firearm while on the job. After several years of providing security for Greif, YSP hired a new security guard, Eric Bator (“Bator”), whom was not licensed to work as an armed guard, yet carried a firearm nonetheless while working the night shift.

The facts giving rise to the case at hand began at approximately 1:00am during which time Bator was the sole guard on duty. Upon noticing two individuals, later identified as Derrel Pusey (“Pusey”) and Charles Thomas (“Thomas”), walking through Greif’s parking lot, Bator questioned the men of their intentions and ultimately ordered them to lie down on the ground with their arms out to their sides. Although Thomas complied with Bator’s orders, Pusey, while lying on the ground, made a quick movement like he was reaching for something in his back pocket, wherein Bator discharged his firearm, fatally wounding Pusey. As such, Pusey’s mother (“Plaintiff”), instituted a wrongful death and survivorship action against Bator, YSP, and Greif. At the trial level, Greif moved for a directed verdict, which was granted and subsequently affirmed on appeal by the Seventh District Court of Appeals.

Plaintiff appealed this case to the Ohio Supreme Court wherein the general rule regarding a company’s liability for an independent contractor’s negligence was examined. The first question in determining the liability of a company for the negligent acts of an independent contract begins with the chief question of whether one is an employee or an independent contractor. In Bobik v. Indus. Comm., the court answered this question by positing that, should “the right to control the manner or means of performing the work” lie with the company, there is an employer-employee relationship, incurring vicarious liability upon the company. In the alternative, should this right lie with the one performing the work, the employer will be insulated from liability. The court then considered exceptions to the general rule regarding independent contractors, specifically those stemming from the “nondelegable duty doctrine,” which includes two separate categories: (1) “affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law and; (2) duties imposed on the employer that arise out of the work itself because it creates danger to others, i.e., inherently dangerous work.”

Should the work assigned fall into one of the two above-listed categories, “the employer may delegate the work…., but he cannot delegate the duty,” i.e., the employer is not insulated from liability. To determine whether the work itself is inherently dangerous, it must create a peculiar risk of harm to others unless the company takes special precautions by ensuring that the work is done with reasonable care. For work to be considered inherently dangerous, “it is sufficient that the work involves a risk, recognizable in advance, of physical harm to others, which is inherent in the work itself.” Although the exception does not apply to a general anticipation of the possibility that an independent contractor will negligently cause harm to a third party, it will apply where the work creates special risks which would cause a reasonable person to recognize a necessity to take special precautions, i.e., the work must create a risk that is “not a normal, routine matter of customary human activity.”

Although Greif argued that hiring armed guards does not create a peculiar risk of harm to third parties, the court disagreed and stated that because YSP guards were instructed to “deter theft and vandalism,” the work contracted for anticipated a confrontation between armed guards and persons entering Greif’s property. Therefore, the work that YSP was hired to do created a foreseeable and peculiar risk of harm to third parties, which was not a normal, routine matter of human activity. As such, the case was remanded to the trial court for a determination of whether Bator acted with negligence in discharging his firearm. Pursuant to the Ohio Supreme Court’s holding, upon a showing of such negligence, Greif should be held liable for the death of Pusey.

In sum, a business may be held liable for the negligent acts of an independent contractor when the employer uses said contractor in a manner that most would consider inherently dangerous, i.e., there is a high chance that the contractor’s actions cause physical harm to others.

Note from Lawrence & Associates:  Most lawsuits related to injury or death are due to negligence, but this is not always the case.  Some lawsuits have layers, such as the instant case where a company’s negligence enabled the intentional act of another party, and these actions in combination got someone killed. If you are trying to figure out whether you should contact an attorney about filing a lawsuit, consider the fact that a good attorney can investigate your claim and will sometimes find issues not immediately obvious to you that indicate you should file a lawsuit related to your injury or the death of a loved one.  If you believe you may have an injury related lawsuit or insurance claim, don’t hesitate to call one of our attorneys for a free consultation.  We’re Working Hard for the Working Class, and we want to help you!

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