Don’t fall victim to the “There Ain’t Nothing Wrong With the Floor” defense. If you trip over an object on the floor at work and fall, you are almost certain to be covered by the workers’ compensation laws. But what happens if you simply fall at work on a completely level floor or on a smooth rug and there is no obvious cause for your fall? What if your employer responds that you can not get workers’ compensation benefits because “there ain’t nothing wrong with the floor” to have caused you to fall? Is the employer right?
Many of us remember the “Just Say No” Campaign in an effort to fight the war on drugs. Green shirts were promoted among children with the popular saying to try and thwart our small minds from saying “Yes” to experimental drugs. In the name of public policy a governmental agency created a slogan, provided t-shirts to poor children and pushed their agenda through the public education system keeping many from being able to enjoy the high of quality street drugs.
A recent article by NPR illustrates what is wrong with any legislation put forth in the name of “reform”. This article provides quantitative evidence and examples of why the workers’ compensation system is broken. Our very own Ernie Trammell has provided articles about South Carolina Workers’ Compensation issues writing, “Injured at Work in South Carolina? What you need to know. (Part 1)” & “Injured at Work in South Carolina? What you need to know. (Part 2).”
For an in depth analysis, historic background on the intent, and current state of workers’ compensation laws, you should educate yourself with this article. More importantly, you should arm yourself with an attorney if you have a workers’ compensation claim:
The Clemson football team had the NC State game handled by halftime so my wife and friends convinced me that a walk to the Esso on this beautiful afternoon was a good idea. Trying to enjoy the time my wife and I have together with her out of nurse anesthetist school now and no kids, I obliged. The ladies were quick to try and find a restroom not made of plastic and almost full, while the men were expected to work through the crowd at the bar for adult beverages. Having attended Clemson, I was familiar with the Esso and strategic spots to approach for the best leverage and line of sight with the bartender. Not to mention, I could now afford to hold out a $20 bill.
As I approached my honey hole of a spot at the bar another gentleman in front of me turned around. I am about 6’2" and I had to look up a good many inches to him. He had apparently been there all day for this 3:30pm kick off based on the swaying motion I observed as he double fisted two orange Bud Lights. I was unclear of his intentions as he shouted and pointed at me saying, "I know your face!". I made some comment that I have a familiar face and he then asked if I was in sales. I said no and continued to try and get the drink order in. Then he said, "What do you do then?". When I said, "I am a lawyer." That seemed to help him clear all the clouds in his head and put it together as he shouted, "You’re a *& liar!" Well, alcohol or no alcohol those are usually words that help escalate things and his three friends turned around and I felt my wife push past me in between us and start to divert the conversation.
We were both Clemson fans and I can not stand to see in fighting. I was relatively calm for the situation and simply asked why he would say that. He went on to explain in a round about way that he was a juror member on a recent trial I had in Westminster Magistrate Court in Oconee County where my two clients were liars. My bell went off then and I remembered his disinterested looks, attempts to raise my voice to wake him up during the trial, and total apathy in the whole trial process he was invited to participate in that work day.
Realizing the gold in this opportunity to talk with a juror after a trial where inhibitions were low and honesty high, if not unfiltered, I asked what he disliked about the trial. He listed several things:
- The fact that he had to miss work to be there;
- My clients looked like they were liars; and
- I was an attorney willing to lie for them but in an educated way.
I tried to get him to be more specific but he could not remember the facts of the case or anything about the case. (It was a motor vehicle collision where the at fault driver pulled out into traffic and then immediately backed up into my clients after realizing he pulled in front of someone else. The insurance company for the at fault driver played hardball and made offers lower than the emergency room bills so we had to try the case). Plus if you have ever been in the Esso during a game, it can be difficult to carry on an indepth conversation.
As I tried to pull more information out of him to improve my future chances of not being called a liar simply because I am an attorney, he finally softened up a little bit and said: "You know, I will give it to you though. You made me think. When I came in and sat down I immediately knew your clients were lying. (He made this decision prior to any parties being named plaintiff or defendant or hearing any attorney speak). He then said, "After you presented the case with your ‘silver tongue‘, you had me thinkin…but then I just knew your clients were lying."
I thanked the man for his feedback and bought him another orange Bud Light to go with the two in his hand. He quickly emptied one to make room for the extra and said I wasn’t that bad after all. He told me not to worry because I still got paid and I quickly put that myth to bed to help him appreciate the generous orange Bud Light he had just received from the contingency fee lawyer that the jury found in favor of the other party. Which in laymen’s terms means that lawyer (me in this case) didn’t get paid or reimbursed for any time and/or costs in the case.
It gave me a fresh outlook at my cases and reminded me;
- We all are judged by our covers regardless of what the content may be;
- First impressions in trial are hard to shake; and
- You can’t win them all (or over) but you can try the best case for your clients and still be called a liar by a drunk at the bar.
A pedestrian, or any person on foot, has duties just like those driving motor vehicles to be responsible, however, sometimes the higher duty and responsibility remains with the driver of the motor vehicle to be more alert and observant.
South Carolina Drivers’ Manual is where we all started and had to learn the "rules of the road" before being granted permission to get our license. After the introduction, the manual goes into "General Information", more specifically the subsection entitled, "Sharing the Road" states:
It is your responsibility as a driver to be on the lookout and to take every precaution possible to not injure a person on foot. If you see a vehicle, pedestrian or children near the road, you should slow down and be prepared to stop. (General Information p.45)
The South Carolina Code of Laws sets forth a few reminders for all of us drivers on the roadways as it pertains to pedestrians:
SECTION 56-5-3230. Drivers to exercise due care.
Notwithstanding other provisions of any local ordinance, every driver of a vehicle shallexercise due care to avoid colliding with any pedestrian or any person propelling a human-powered vehicle and shall give an audible signal when necessary and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person.
SECTION 56-5-1520. General rules as to maximum speed limits; lower speeds may be required.
(A) A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Speed must be so controlled to avoid colliding with a person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of a person to use care.
(F) The driver of a vehicle shall drive, consistent with the requirements of subsection (A), at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, approaching a hillcrest, when traveling upon any narrow bridge, narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.
South Carolina case law follows in line with the before mentioned rules in stating:
- One operating a motor vehicle on a public highway owes an urgent duty to keep a proper lookout and to keep the vehicle under proper control. Yaun v. Baldridge, 134 S.E.2d 248, 251 (S.C.1964).
- Negligence is established as a matter of law if the only inference is that either the driver did not look or did so in such a careless fashion as not to see what was in plain view. Williams v. Davis, 243 S.C. 524, 134 S.E.2d 760 (1964).
No one may truly know what happened during the incident. However, this is a time to remind all of us who get behind the wheel to just remain alert and vigilant to our surroundings.
In an effort to help you the consumer be more aware of what really happens with your insurance premiums, I want to make sure you understand what happens when the real world collides with the insurance world.
Hypothetical, or Example:
Suppose you are in South Carolina driving your beautiful wife and young child to church one morning when suddenly and without warning a drunk driver passes out at the wheel behind you and plows into your vehicle causing serious personal injuries. The drunk driver stumbles away from the scene but is later found at the convenient store nearby trying to buy beer. The police come do an investigation as you and your family are taken off by EMS to a nearby hospital and you eventually get to talk to the trooper that investigated the collision. The trooper indicates the driver was arrested for drunk driving (the driver’s 4th), driving under suspension and disorderly conduct. He will probably be released from jail soon since no one died and since he doesn’t really have any money, the fines will be a moot point. Drunk driver has no insurance on the vehicle because he could not afford it and lives in a van by the river (so no assets).
1) Who pays for the medical bills, damaged property, permanent scarring, surgeries, and months on end of an altered lifestyle all because of this idiot?
2) Do you think the EMS transportation, medical services, car dealership, towing company, plastic surgeon, therapist, and rental company all will work for free out of the kindness of their hearts?
1) In the state of South Carolina the law is that every driver must carry liability insurance and uninsured insurance to drive on the roadways in the state. That is it. Any additional coverage is up to you and what you are savvy enough to get with the right insurance company and agent.
So using the hypothetical above, the family injured would have to file a claim against their own automobile insurance company to try and be reimbursed and brought back to the position they were in before the drunk driver ever struck them.
Do you think that means your own insurance company will bend over backwards to help you OR do you think that means your own insurance company that you pay the premiums on will stand in front of the drunk driver and work against you to minimize what you receive? Let me answer that for you…the later.
What if you have to file a law suit? Who represents the drunk? Well your insurance company provides an attorney that will look to be representing his interest and would actually sit at the drunk’s table in front of the jury at a trial.
That is why it is important to get a good insurance company focused on its members instead of a poor insurance company focused on their bottom line. In my opinion the top poor insurance companies are Allstate, Esurance, Safeco, and Direct General. It doesn’t mean your insurance company is great if I didn’t just list it, these are just the worst.
2) No those services are not free and they will send you to collections if you do not pay them within 90 days regardless of who is at fault. They provide services and they want their money for those services.
Stay tuned for more real life scenarios. To better educate yourself on insurance read these posts.
"Why Did You Take That Case? It’s Not Worth Your Time!"
A question recently posed to me by an insurance defense attorney that thinks certain cases should be beneath legal assistance because there is no real margin for a positive financial return. It reminded me of the real reason I became a lawyer and constantly reminds me of the every day people that need lawyers not solely focused on the bottom line. I realize this is a hard task because we are still running a business that has to pay overhead expenses, support ourselves and our families, and pay those law school loans! On top of that in South Carolina you are "assigned" cases that you are going to be spending time and money on for free anyway, which could easily fill that small philanthropic,or charitable void, in your cynical, cold heart.
Rise up, my cynical counterparts and cohorts in the business of assisting those in need when the tyrannical insurance company rears its ugly head. We must unite and bring forth our swords swiftly to sever its head before it begins to breathe fire and destroy all that is pure and just in a world bombarded with:
- low balling adjusters reading from a computer screen;
- experienced insurance adjusters being pushed to retire for college graduates that can read;
- denials based purely on money saving tactics;
- Allstate Insurance Company practices focused on trying to squeeze out the desire for attorneys to help;
- property damage claims (See: South Carolina Property Arbitration:Your Weapon Against Insurance Adjusters) ;
- minor property damage claims; and
- anything quasi legal that comes out of the mouth of an adjuster.
How about grab that bravado that made you a plaintiff’s attorney and start saying, "F&*^ You, I want do what you tell me!" You can make the time for half a dozen of those cases a year. I know you "Million Dollar Advocates" can spare some time to feel reinvigorated and you young associates that do research all day can feel like real trial lawyers by taking on a Magistrate Court case or Property Arbitration. By pushing back on what the dragon is trying to force feed us we can eventually slay the large reptile and save the townspeople.
The Fourth of July is a good time to remember our nation’s dedication to the rule of law and to celebrate this principle that sets us apart from many other countries.
Two hundred thirty-eight years ago, the Declaration of Independence charged the king of England with depriving the colonists of their right to a trial by jury. Because America’s founders believed serving on a jury and testifying in court were essential responsibilities of being a citizen, they were willing to wage war to stand up for this right.
Throughout history, lawyers have fought to uphold the rule of law in our nation’s most defining moments: drafting the Declaration of Independence and the Constitution, crafting the Emancipation Proclamation and ending the Civil War, creating the New Deal to pull America out of the Great Depression and supporting the Civil Rights movement.
Still today, the rule of law is essential to our freedoms. The rule of law describes a system based on fair, publicized, easily understood and stable laws enforced by knowledgeable judges. Although Americans often take these rights and privileges for granted, we must always remember that our liberties, rights and way of life would be in great jeopardy without the rule of law. In many parts of the world, these rights are just a dream.
There always will be people who do not agree with a judge’s ruling and who criticize the lawyers who defend the accused. The fact is that under the American judicial system, anyone charged with a crime is innocent until proven guilty: It is the defense attorney’s job to ensure his or her client has a fair trial, the prosecutor’s responsibility to present evidence to the court on behalf of the state, and the judge’s responsibility to rule based on the facts presented. This system is the very cornerstone of our founders’ vision. As Americans, we should share the same passion and commitment today as our founders 238 years ago.
In some cases, the system our founders envisioned is not fully accessible. I am very proud that S.C. lawyers are dedicated to advancing justice and ensuring that the civil legal system is available to all our citizens. Many lawyers choose this profession because they believe in the American legal system and want to make a difference in the lives of those they represent. It is important that we stand up for everyone’s access to the privileges of our system.
Thanks to many lawyers serving as volunteers, the S.C. Bar offers programs to provide legal representation and advice to those who cannot easily access or afford it. We sponsor free legal clinics and Ask-A-Lawyer phone banks and web chats. We also help provide wills to first-response personnel and Habitat for Humanity homeowners; educate at-risk high school students on criminal law and the consequences of their choices; educate the public about adoption and foster care; and teach students about civic responsibility. For information, please visit scbar.org or call (803) 799-6653.
As we spend time this weekend with family and friends and give thanks for this beautiful nation, let us honor one of the defining principles of this nation’s founding — celebrating our legal rights, access to a fair and balanced justice system and the commitment of this state and nation to upholding the rule of law for all citizens.
Printed July 3, 2014 in "The State" as:
ABOUT THE AUTHOR:
Cal, a native of Bamberg, South Carolina, is a graduate of Wofford College and the University of South Carolina School of Law. He is also President of the South Carolina Bar and the former President of Historic Columbia.
My wife, who is typically my worst juror or best devil’s advocate on cases, was appalled to hear about some of my more recent clients and how the insurance company was treating them. She said, "Well you never hear about those type cases in the news or on TV!"
I laughed and then felt overwhelmed with sadness because I realized that is very true and if most people knew or were privy to the things I experience on a daily basis they would:
D) They would forget all about it and move on to another issue or concern because we are a fickle public almost immune to shocking news of being swindled out of our morality, justice, and legal rights.
Yet, I continue to see it every day and when I report it to the SC Department of Insurance I am crying wolf. When I blog about it or talk to friends, family, enemies, or strangers about it, they discount my opinion due to the obvious bias of my position as an advocate for the injured, harmed, and disenfranchised.
However, once an attorney gets wind or retains a client with one of "those cases" most times they are settled with the insurance company paying all the money available on the claim. However, that doesn’t mean the insurance company pays lots of money QUICKLY. Or in return doesn’t try to divert the injured party away from sound advice that is on their side versus working against them. (See my article entitled: Would You Take Advice from the Devil on How to Get to Heaven?: Insurance Company Lies). Insurance companies make money by keeping it out of the injured party’s hand as long as they can while still investing the premiums their insureds pay them to protect against harms they cause others. (See my article entitled: How Do Insurance Companies Make Money?)
In all of the cases the injured party was being ignored, getting the silent treatment, or being talked down to like they were money hungry panhandlers looking for a handout from Big Daddy. When in fact the people that the insurance company insured were:
1) drunk driving behind the wheel and could have harmed anyone reading this;
2) were high on drugs with stolen merchandise in their trunk trying to get out of state before the police caught up with them and could have harmed anyone reading this;
3) traveling 20 mph or more over the speed limit through a busy intersection trying to get to their plane for a vacation to some tropical paradise and could have harmed anyone reading this;
4) had just left the strip club drunk and ran through a stop sign striking a client working their second job to provide for a family and could have…….
I know, I know bad things happen and you just have to deal with it. Well, that is true but insurance (health and auto now) is mandated by state and federal laws so everyone has to have some form of it. Thus, when insurance companies come into pay and should be reimbursing the injured party for the wrongs, harms, loses, and injuries their insured has caused another innocent party that s*&& doesn’t always work the way it is suppose to. Insurance companies deny, delay, and defend money from injured parties. Wake the f*& up people. WTFU!
Why do you think I am in that trial in front of a jury? It’s not to take money from that poor person that just had an accident and I am trying to take their home. Or some business made a simple mistake and I am trying to close down someone’s American Dream. Really!? It’s to get that person’s insurance company to pay a reasonable amount to my client.
If you have "one of those cases" give us a call and at least run it by someone first before you walk like a cow to slaughter down that line to sign a check for little bit over your out of pocket medical bills thinking that is all you are entitled to because that is what the insurance adjuster told you. When you do that you are forever and ever releasing the insurance company from any wrongs their insured caused you for the rest of your life. If nothing else remember this, "It’s not what the insurance adjuster says that matters, it’s what they pay."
You have just been involved in a traumatic incident of some kind and now your world is turned upside down. You never planned on being:
- unable to work;
- permanently disfigured;
- without an avenue for medical treatment;
- no knowledge on how to get out of the hole someone, something, or some event has put you into; or
- what steps to take to get back before your world stopped.
The next thing you do is communicate with family, friends, and/or co-workers. They know someone, read something, saw it on the Internet, watched "Judge Judy", or have a "friend" themselves that has been through the exact same thing and this is what you …….STOP THE MADNESS!
It’s great to have loved ones and I am sure they want nothing but the best for you but I don’t claim to know everything about everything. I hire real estate agents to move property and tax advisers (Patterson Tax Service) to do my taxes even though I have had Real Estate and Tax classes in law school (which means I know enough to be dangerous to myself, or absolutely nothing).
My common saying is, "You don’t listen to the devil on how to get to Heaven, so why listen to an insurance adjuster on how to settle a claim against them?" They are going to lie, or mislead you. You don’t go to your opponent in the middle of the game and ask them how to beat them do you? NO! Stop listening to what an adjuster says about your claim. Talk to an attorney. You at least have recourse against an attorney if they give you incorrect legal advice. (You could have recourse against an adjuster but it is hard to prove).
Likewise, stop listening to your friends give you "arm chair" legal direction on your case. Go talk to a lawyer. It is free to consult with a lawyer on most civil cases and no fee is received by the lawyer unless a settlement is negotiated or trial verdict rendered. Tell me who else you know works 100% on performance pay? Defense attorneys and insurance adjusters work hourly or salary and may get some kind of bonus based on performance but I would imagine 75% of their income will come to them regardless of how well they perform.
I work 100% on performance and get close to 70% of my business from word of mouth based on clients, friends, family members, colleagues, and other professionals that are familiar with our firm’s performance. Seek out the help you need from the right professionals rather than receiving the wrong information. You may not hear what you like but at least it will be an honest, experienced, and informed response looking out for YOUR BEST INTEREST.