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Welcome to a Discussion of Legal Issues Facing North Carolinians

This blog does not create an attorney client relationship. You should not rely on this information for advice. If you have a legal question you should contact an attorney.


Wednesday, October 23, 2013

Spilled coffee in lap at McDonalds

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Invariably when we pick a jury, there will some reference to the lady who won "millions" of dollars from McDonalds when she spilled coffee in her lap.  The reporting of this incident was perhaps the most skewed reporting I have ever seen and was part of a political agenda for tort reform.  Please take a minute and look at this video:

The real story about the lady with the coffer burn.

Insurance Bad Faith

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Chapter 58 of the North Carolina General Statues prohibits an insurance company from doing certain wrongful acts.  More specifically, the statute is called the Unfair Claim Settlement Practices
N.C. Gen. Stat. Ann. § 58-63-15. 
Unfortunately, these claims cannot be brought against someone else's insurance company, but only your insurance company.  If there is a single violation of the Act, the insured is entitled to recover treble damages and attorney fees under Unfair and Deceptive Trade Practices Act (Chapter 75 of the North Carolina General Statutes).  
 The acts that are prohibited include:

a. Misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue;
b. Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies;
c. Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies;
d. Refusing to pay claims without conducting a reasonable investigation based upon all available information;
e. Failing to affirm or deny coverage of claims within a reasonable time after proof-of-loss statements have been completed;
f. Not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear;
g. Compelling the insured to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insured;
h. Attempting to settle a claim for less than the amount to which a reasonable man would have believed he was entitled;
i. Attempting to settle claims on the basis of an application which was altered without notice to, or knowledge or consent of, the insured;
j. Making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are being made;
k. Making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;
l. Delaying the investigation or payment of claims by requiring an insured claimant, or the physician, of or either,1 to submit a preliminary claim report and then requiring the subsequent submission of formal proof-of-loss forms, both of which submissions contain substantially the same information;
m. Failing to promptly settle claims where liability has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage; and
n. Failing to promptly provide a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim or for the offer of a compromise settlement.


N.C. Gen. Stat. Ann. § 58-63-15 (West)

Police Officers cannot use unreasonable force

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Police officers often risk their lives to protect the public.  They are appropriately respected and deserve the appreciation of all of us.  Yet there are times in which a police officer uses unreasonable force in investigating a crime or making an arrest.  Police officers have immunity from prosecution for ordinary force that must be used in the course of their work.  However, the United States Constitution requires that the use of force must be reasonable - especially when it comes to the use of deadly force.  The leading case on this law is GRAHAM v. CONNOR, 490 U.S. 386 (1989).

Wednesday, July 10, 2013

DeVore, Acton & Stafford, P.A. Moving Law Office to Queens Road


On July 21, 2013, the law firm of DeVore, Acton & Stafford, P.A., a prominent firm in the Charlotte area for over twenty years, is proudly relocating its law offices to 438 Queens Road, Charlotte, NC 28207, the former location of the Mecklenburg County Bar.  The firm will occupy the entire 100-year old historic house and recently constructed annex.

True to its history and mission, the firm will continue to specialize in civil litigation, including but not limited to: catastrophic injury, wrongful death, contract and property disputes, construction litigation, as well as medical malpractice and workers compensation. 

The rest of the firm's contact information will remain the same.

 

www.devact.com

Thursday, June 13, 2013

Avoid pitfalls of the insurance application and claims process

Our firm recently litigated a case where a warehouse was damaged by a tornado.  The damage was estimated to be around $1 Million.  During the course of the investigation of the claim, the insurance company sought certain information from the insured and the insurance agent that procured the policy.  The insurance company then denied coverage after it determined that the information contained in the application was false.

What transpired was a year-long court battle in which the insurance company, insurance agent, and insured argued over which party was at fault in issuing the policy and in completing the application.

It is important that any time you sign an insurance application that you read it carefully.  Even if an agent completes the application, by signing you are attesting to the truthfulness of its contents.  This is vital to any insurance policy because insurance companies can avoid paying a claim if they later determine that the application was incorrect.  Particularly in large loss claims, insurance companies will comb over every piece of your application.

However, because you sign an incorrect application does not mean you have no legal remedy.  First, an insurance company may not be able to void a policy if it issued the policy prior to you signing an application.  Secondly, an insurance agent may also have a duty to assist you in acquiring insurance and in filing a claim.  If the agent is found to have breached his/her fiduciary duty to you in failing to obtain insurance or in presenting false information to the insurer during the investigation of the claim, he/she can be held liable.

Still, you want to avoid lengthy court battles by reading any insurance application before signing and hiring an insurance agent that you trust.


This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

New lien laws that every contractor and sub-contractor must know

As of April 1, 2013, there are new lien laws that every contractor and subcontractor MUST be aware of prior to commencing work on a project.  These laws apply to any project that first begins work after April 1, 2013.

As a result of extensive lobbying by the title insurance industry, the NC General Assembly recently enacted N.C. Gen. Stat. 44A-11.1 and 11.2.  In short, these statutes have created the position of a lien agent for any project greater than $30,000.00 (unless the project is at a private residence, to which exceptions apply).  Every owner is now required to designate a lien agent prior to commencement of construction.  Said lien agent shall be designated on the building permit or somewhere else on the property, and said individual's name shall be given by owner upon request of the contractor.  Contractors are thus required to give the name of designated agent to subs, and so forth down the line.

Here is the most important part: if you do work or supply materials to a work site, you are deemed a potential lien claimant.  In order to indefinitely protect your future lien rights (as against future owners of the property), you must send a notice to lien agent that you are a potential lien claimant within fifteen days after first furnishing labor or materials. 

An attorney experienced in representing contractors and subcontractors can help you prepare and serve these notices.  If a notice is not timely and properly prepared and served, you potentially lose your right to enforce a lien on the property against a subsequent purchaser.

It is important to note that a notice to lien agent (described above) is not a substitute for filing a lien.  But for a few minor changes, statutes governing liens on property and liens on funds remain unchanged.  As has always been the case, if you find yourself in a situation where payment for work or materials is delayed, you should contact an attorney to protect your rights.  S/he can also advise you on ways to best protect your business in the future.


This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Monday, March 11, 2013

Property Disputes & Title Insurance

 Imagine finding the house of your dreams or the perfect location to start your new business.  Imagine how excited you are to learn that you have the financing necessary to close on the property.  Then imagine that the financing falls through because you can't get title insurance on the property.  Whereas the cost for title insurance is minimal compared to the high costs of real estate, it is an expense that can mean the difference between buying that dream location versus having to find an alternate venue.

The reason this can happen is because the deed history on property can become very complex and confusing.  Over time, with properties exchanging hands multiple times, the situation worsens.  The purpose of title insurance is to ensure that you, as the purchaser, are insured against other claims to property.  Title insurance companies must be satisfied that your claim to the property is proper, or they will not grant you title insurance.

To make you understand their rationale, imagine a driver with a long history of serious traffic accidents.  At some point he/she becomes uninsurable and auto insurers will no longer take the risk of insuring his driving.  Title insurers think similarly, but on a grander scale (The majority of traffic accidents are much less costly than real estate). Title insurers do not want to be in a positions where there is the likelihood of having to defend a lawsuit on your behalf.

Sometimes the issues preventing coverage can be solved with a simple phone call.  Sometimes a property litigation attorney is necessary to file an action to quiet title, which is a lawsuit asking the Court to declare who is the rightful owner of property.


This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Property Disputes & Title Insurance

 Imagine finding the house of your dreams or the perfect location to start your new business.  Imagine how excited you are to learn that you have the financing necessary to close on the property.  Then imagine that the financing falls through because you can't get title insurance on the property.  Whereas the cost for title insurance is minimal compared to the high costs of real estate, it is an expense that can mean the difference between buying that dream location versus having to find an alternate veue.

The reason this can happen is because the deed history on property can become very complex and confusing.  Over time, with properties exchanging hands multiple times, the situation worsens.  The purpose of title insurance is to ensure that you, as the purchaser, are insured against other claims to property.  Title insurance companies must be satisfied that your claim to the property is proper, or they will not grant you title insurance. 

To make you understand their rationale, imagine a driver with a long history of serious traffic accidents.  At some point he/she becomes uninsurable and auto insurers will no longer take the risk of insuring his driving.  Title insurers think similarly, but on a grander scale (The majority of traffic accidents are much less costly than real estate). Title insurers do not want to be in a positions where there is the likelihood of having to defend a lawsuit on your behalf.

Sometimes the issues preventing coverage can be solved with a simple phone call.  Sometimes a property litigation attorney is necessary to file an action to quiet title, which is a lawsuit asking the Court to declare who is the rightful owner of property. 


This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Handling Auto Accidents & Insurance Companies

 If you have had the unfortunate experience of being in an automobile accident, you have likely also suffered the uncomfortable and painstaking task of dealing with an insurance company.  And depending on the at-fault party's insurance policy limits, you may find yourself dealing with more than one insurance company.  Often times, your own insurance policy provides coverage for Uninsured Motorists (UM) and Underinsured Motorists (UIM).  This means that if you suffer property damages, medical expenses, and personal injuries beyond the at-fault party's policy limits, your own insurance company is responsibly for paying the excess.

However, it is important that you know that your own insurance company becomes an adverse party in that instant.  Though they have a duty to evaluate and adjust your claim fairly, they do not have to pay what they disagree is owed.  Unfortunately, disagreements seem to be the norm rather than the exception.  Therefore, you may be forced to hire an attorney to initiate litigation to recover for your damages and injuries.  Disagreements on property damage and personal injuries must be resolved by a jury and an experienced litigation team is vital to maximizing a jury award. 


This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Tuesday, January 8, 2013

Mechanic's and Materialmen's Liens

One of the most important legal remedies available to contractors and subcontractors is the right to file a lien.  Liens serve a variety of functions, the most important of which is 1) to put the owner on notice that you have not been paid, 2) to make a secure claim for payment.

Filing a lien in state court requires paying a nominal fee and serving the interested parties.  It is very important that liens are timely filed and that all filed documents contain accurate information. Unlike many things filed in state courts, a lien cannot be amended. Instead, in the event of an error, you must file a new lien and run the risk of filing too late. In North Carolina, you must file a lien within 120 days of the last substantial work on the property.

Failure to follow the strict guidelines imposed by your governing statutes could mean losing your lien rights. Often times the modest cost of hiring an attorney to file a lien can mean the difference between tens of thousands of dollars and nothing.  If you are a sub and your contractor files bankruptcy or becomes insolvent, a timely filed lien on funds and a lien on real property can salvage your business.  If money is owed to your contractor and you have not been paid, a lien directs the owner to make payment to you before paying the contractor any additional funds.

Second and third tier subs have similar remedies.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.