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.
The North Carolina Department of Transportation recently announced that after much delay, it is going to proceed with the Monroe Bypass. This will be a 20 mile toll four lane road that runs approximately from Stallings to almost Marshville. (See Map). The NCDOT has created a flyover of what the proposed road will look like. The project website may be found by clicking here.
If you are property owner in the path of the new road, you have the absolute right to be paid for your property considering its highest and best use. You may want to seek legal advice before entering into any agreement with the NCDOT.
Common questions are:
Do I have to accept the State's offer?
Do I need an appraiser?
How long does it take to go to Court?
Do I need an attorney?
When do I get paid?
If there is mortgage on the property, how is that handled?
What if the roadway impacts other property I own nearby?
In most cases, our firm will provide a free initial consultation to assist you in making decisions about your property. Visit us at www.devact.com or call 704-377-5242 and ask for Will or Fred DeVore.
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.
Most builders or contractors have a commercial general liability ("CGL") insurance policy for a particular project. It is often required by the construction lender. However, whether this policy actually affords any meaningful insurance to either the contractor or the owner is another question.
Much to the surprise of builders and owners, construction defects are generally NOT covered by either a CGL policy or the owner's homeowners policy (or business policy). The example we often give clients is that if your roof leaked as a result of a construction defect, the insurance company might pay for the damage the leak caused, but not the cost of repairing the leak.
Reduced to the most basic terms, a CGL policy will only cover losses caused by an "occurrence" not a defect. An occurrence could be a fire or storm, for example, that occurs while the builder is working on the project. It would also likely cover personal injuries suffered by third parties on the job.
Several years ago, CGL policies provided additional insurance for subcontractors on the job. Under these older policies, if a contractor was negligent, it might be covered under the policy. However, in more recent years that coverage has been written out of the policy and can only be acquired by purchasing a separate endorsement from the insurance company.
For builders who find themselves without coverage and facing a substantial claim - bankruptcy may be the only alternative which is terrible news for both the contractor and the owner.
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.
There is no more difficult case than one where a loved one has been lost due to the negligence of another. How can you begin to place a monetary value or something that is priceless?
When faced with a wrongful death situation, here is an outline of the steps that will need to be taken.
1. You must open an estate. This is done by going to the Clerk of Court in the county where the person lived or died, and making an application to open the estate. If the person who died left a will, then the person appointed in the will to serve as executor will be responsible for opening the estate. If the person died without a will, then the Clerk will appoint the next of kin to serve as the administrator of the estate, after getting the consent of the other heirs.
2. Once the estate is opened, the Clerk will issue "Letters of Testamentary". These "Letters" are somewhat like a power of attorney and it authorizes you to manage the affairs of the estate - from paying creditors to collecting the assets of the estate and distributing them.
3. North Carolina General Statute 28A-13-3 gives the executor or administrator the exclusive right and responsibility for bringing a wrongful death claim. The statute of limitations to bring a legal action to recover for wrongful death is two years from the date of death.
4. What may be recovered in such an action is also set forth in the statute. What may be considered in evaluating such a claim are:
(1) Expenses for care, treatment and hospitalization
incident to the injury resulting in death;
(2) Compensation for pain and suffering of the decedent;
(3) The reasonable funeral expenses of the decedent;
(4) The present monetary value of the decedent to the
persons entitled to receive the damages recovered, including but not limited to
compensation for the loss of the reasonably expected;
a. Net income of the
decedent,
b. Services, protection, care
and assistance of the decedent, whether voluntary or obligatory, to the persons
entitled to the damages recovered,
c. Society,
companionship, comfort, guidance, kindly offices and advice of the decedent to
the persons entitled to the damages recovered;
4. Proceeds from a wrongful death statute are distributed to the deceased person's heirs pursuant to a statute and regardless of whether the person had a will. Any money recovered is distributed as if the person died without a will. Also, any proceeds that you may recover may not be used to be creditors of the estate (except for some limited funeral and medical expenses). However, if the person lived and was conscious before he or she died, the estate may also be entitled to recover for personal injuries (medical expenses, pain and suffering, etc.) in addition to a wrongful death recovery. In this case, the funds do pass through the estate (under the will, if one exists).
5. If a settlement is reached in a wrongful death action, it must be approved by all of the heirs or by court order. (Court approval is always required if an heir is a minor).
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.
Did you know that in North Carolina, a person is only required to have $30,000 in automobile liability insurance coverage? With the rising cost of health care and mandatory diagnostic medical procedures, a person seriously injured in an automobile accident may face medical expenses in excess of $30,000 in a matter of a day or two. That is why it is imperative that your insurance policy contain underinsurance coverage, sometimes called UIM.
UIM coverage means that if the person who caused the accident does not have enough insurance to pay you for your medical bills, pain and suffering, lost wages, disability, etc., then your policy will provide you with additional coverage - up to a million dollars.
Buy UIM is not required in North Carolina and there is an additional premium to have it included in your policy. However, the increased premium is well worth it. Furthermore, if you make make a UIM claim, it will not increase your premium or affect your insurance in any way.
In making a UIM claim, one must be very careful. Oftentimes the injured party will mistakenly give a release to the insurance company that insured the person that caused the wreck. When this occurs, your right to make a UIM claim may be lost.
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.
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:
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 SettlementPractices
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.
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).
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.
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.
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.
