News and Law for Non-lawyers

Contributory Negligence in NC: why comparative won't raise insurance rates

NC Lawyers' Weekly has provided a great link to an article that was run in the Winston-Salem Journal about contributory negligence laws in North Carolina. 

Contrubutory Negligence is an issue that people don't know or care about, until they face the problem themselves.  Basically, in NC, even if you are hurt by someone else's negligence, if the other person can prove you are just a little bit to blame for your injury, you are barred from any recovery.  That's right.  Someone else is 99.9% to blame, and you are barred from recovery.

Columnist Scott Sexton has written a series of excellent articles on the subject and really puts a human face on this convoluted and political issue.  I highly recommend reading these articles.

I'll also add this to the mix.  One of the problems with contributory negligence is that it is so often a bar to people seeking legal representation.  Lawyers who represent injured people know that they could spend years working on case and lose everything at trial simply because a jury felt the Plaintiff may have played some very small part in causing the accident.

Here are some the the previous articles by Sexton:

Contibutory Negligence: it's "an insurance company's dream "

"Never mind that Joshua was 7 years old and was within 3 feet of the curb, or that Logan was drunk and driving on the wrong side of the road. "By way of affirmative defense, Defendant Logan pleads the contributory negligence of the decedent Plaintiff Joshua Franklin Palomares-Beckles," wrote Rodney Guthrie, Logan's attorney. If a jury in North Carolina decides that you are even a tiny bit at fault in this sort of case, you are entitled to nothing under state law, under a concept called contributory negligence. "In general, I'd say contributory negligence is an insurance company's dream," said Walter Holton Jr., the attorney who filed the lawsuit on behalf of Beckles-Palomares. "

Wreck victim faces being victimized by outdated law

"After an automobile accident in New Hanover County involving his daughter, Ashley, a student at the University of North Carolina at Wilmington, Norris has become something of an expert on a legal concept known as "contributory negligence," an outdated and completely unfair area of insurance law used only here and in three other states. That leaves option C. "Our insurance company is also using the contributory-negligence law claim that Ashley is limited in what we can recover," Norris said.

'There is no lobby for the little people' in this state

"Just four states - North Carolina, Virginia, Alabama and Maryland - still hang on to the concept of contributory negligence, a relic from English Common Law. "

Don't believe hype that law would increase insurance rates
By Scott Sexton

Scott Sexton
Email Bio

On its face, insurance law - specifically a legal concept called “contributory negligence” - is something that only a serious policy nerd could love.

That is, unless (or until) you or someone you know gets hosed by that law. Then it’s not so boring.

Contributory negligence works like this: If you’re in an accident and deemed to be just 1 percent at fault, you’re not legally entitled to one red cent to cover your damages from the idiot (or his or her insurance company) who was 99 percent to blame.

Three recent columns explored some of the more outrageous abuses of this law. Possibly the worst was the insurance-company attorney who argued that a 27-year-old man killed by a hit-and-run driver in October 2003 while changing a flat tire in Orange County was partly responsible for his own death.

It’s a shameless, outdated blame-the-victim strategy. It also seems like an easy law to change.

Yet objections remain. The state, for example, could switch to a “comparative-negligence” system. If you’re 90 percent at fault, you (or your insurance company) pay 90 percent of the damages.

“Comparative negligence is a nightmare to apply. Few people agree on the percent fault they are assessed, it increases lawsuits, is a cash cow for lawyers, and raises everyone’s insurance rates,” wrote one reader who works in the insurance industry. “If you haven’t noticed, N.C. enjoys some of the lowest auto-insurance rates in the country.”

Good point. And it’s one worth exploring.

Low-rate state

North Carolina does indeed enjoy consumer-friendly auto-insurance rates - the sixth lowest in the country, according to the N.C. Department of Insurance.

That’s not, however, because of any sense of fair play by insurance companies nor because contributory negligence keeps costs down.

The credit goes to a man who next to nobody has heard of, state Insurance Commissioner Jim Long. He is basically the final word on insurance rates in North Carolina.

Every Feb. 1, the N.C. Rate Bureau - an umbrella organization representing insurance companies - files a rate request. The bureau then makes a rate recommendation. Actuaries and attorneys with the Department of Insurance negotiate any changes with the rate bureau. If there’s no agreement, then Long decides.

“It’s a pretty long and pretty dull process unless you are an actuary,” said Chrissy Pearson, a spokeswoman for the Department of Insurance.

Given that background, I figured that Long’s thoughts on the merits of contributory negligence versus comparative merits would be worth hearing.

You can read the rest of the article by going to the Winston-Salem Journal.

-Chris Nichols 1.800.906.5984

Great video on the myths of "Tort Reform": Mr. Fancy Pants

This is a great YouTube video on the issue of "Tort Reform."

The video does a great job showing how giant corporations have twisted and distorted the truth about law suits in America simply to poison jury pools.  They do this so they can continue to deny responsiblity for wrong doing, and basically "save a buck" at the expense of injured people who have done nothing to cause their own injuries.

It's about 8 minutes long and worth the watch.



Chris Nichols 1.800.906.5984

A Conservative Christian Physician against Tort-Reform

To often, politics of the right and the left interfere with the stark reality of tort reform.  In the past decade or so, conservatives have used "tort-reform" as a political "wedge issue" and have spent multi-millions of dollars to turn the public, and juries, against all Plaintiffs.

The article below was written by a self-described conservative Christian physician who deeply questions the politics of taking away justice from injured people in the name of politics and for the goal of profitting "big business."

This shows me that people are seeing that fairness and responsiblity are truly non-partisan issues, and that lawsuits, in and of themselves, are not "all bad."  In fact, lawyers and lawsuits have often been all that stands between the public and harm.

Remember the Little Guy 
by Steven Hotze, M.D.

Shouldn't companies and individuals who cause you harm be responsible for the damages they inflict?
Pinto_2 You are probably aware of the lawsuits in the 1970s against Ford Motor Company and its Pinto automobile. Because of poor design, rear end crashes often caused the Pintos gasoline tank to explode into flames. Over 500 drivers lost their lives and thousands more were severely burned. Ford knew about this problem and that it would only cost $11 per car to repair but determined it was cheaper to pay the lawsuit settlements than recall the vehicles. Incredibly, Ford put their profits above the safety of their customers.
Because plaintiff attorneys were willing to file lawsuits on behalf of these injured individuals and families on a contingency basis and fight the multi-billion dollar Ford Motor Company, Ford paid hundreds of millions of dollars in judgments. Ford was also criminally charged with negligent homicide for having knowingly sold unsafe cars.
These lawsuits against Ford were based on product liability law which holds businesses responsible for any injuries caused by their products. The Ford lawsuits and resulting settlements sent a strong signal to the automobile industry. Safer cars have been the result.
Over the past decade, the Republicans in the Texas Legislature have passed a series of bills which have limited the liability of large corporations when they are found by a jury to have caused injury to their employees or their customers. This has me concerned and it should have you concerned as well.
Who wouldnt want limited liability for their actions? This is especially true of some large corporations which place their financial interests above the well being of their employees and customers. 
Under current
Texas law, it is hard to imagine that Ford Motor Company would have been required to pay out such a large amount of money in judgments as it did at that time.

Texas_cap Tort reform has dramatically limited the liability of businesses and individuals in Texas. The Texas Legislature has set limits on the amount that a business or individual can be required to pay in judgment to an injured party. No one likes the idea of frivolous lawsuits, but most individuals seem to agree that a remedy should be paid to an injured party commensurate with the damage.
Who does this current law benefit? It benefits the large corporations and the well financed who have deep pockets and the wherewithal to hire a bevy of defense attorneys.  Their financial risk for shoddy workmanship and unsafe products has been dramatically reduced.
What about the small business owner or the individual with modest means?  How will they afford the assistance of a lawyer to help them be fairly compensated for their losses?
As a physician and conservative, I have a healthy distrust for big government and big business. The conservative position requires accountability for actions. It appears to me that the pendulum for tort reform has swung too far in favor of big business.

Its time to remember the little guy.

by Steven Hotze, M.D.


Chris Nichols 1.800.906.5984

How NOT to avoid Jury Duty

This just in from

Every once in a while someone goes a little too far in trying to avoid jury service.  Looks like this guy went overboard in his attempt to avoid service on a grand jury, which amittedly, can take a lot of time.

I think the Judge did the right thing here.  Jury duty is one of the very few real things we can do to actively participate in our democracy.

BARNSTABLE, Massachusetts (AP) -- A Cape Cod man who claimed he was homophobic, racist and a habitual liar to avoid jury duty earned an angry rebuke from a judge on Monday, who referred the case to prosecutors for possible charges.


Daniel Ellis' excuses to try to get out of jury duty didn't sit well with the judge.

"In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," Barnstable Superior Court Judge Gary Nickerson told Daniel Ellis, according to a preliminary court transcript of the exchange.

Ellis, of Falmouth, had been called to court with about 60 other potential jurors for possible service on a 23-member grand jury.

On a questionnaire that all potential jurors fill out, Ellis wrote that he didn't like homosexuals and blacks. He then echoed those sentiments in an interview with Nickerson.

"You say on your form that you're not a fan of homosexuals," Nickerson said.

"That I'm a racist," Ellis interrupted.

"I'm frequently found to be a liar, too. I can't really help it," Ellis added.

"I'm sorry?" Nickerson said.

"I said I'm frequently found to be a liar," Ellis replied.

"So, are you lying to me now?" Nickerson asked.

"Well, I don't know. I might be," was the response.

Ellis then admitted he really didn't want to serve on a jury.

"I have the distinct impression that you're intentionally trying to avoid jury service," Nickerson said.

"That's true," Ellis answered.

Nickerson ordered Ellis taken into custody. He was released later Monday morning.

Ellis could face perjury and other charges.

Chris Nichols 1.800.906.5984

The Truth That Juries Never get to See

As I'm getting ready for a trial, I'm constantly reminded that the "reason the case is going to trial" has more to do with the defendant's insurance company than anything else.  It's frustrating as an attorney fighting for justice because I have the burden of proof for the "facts" of the case, but what the jury really needs to hear, I'm not allowed to tell them.

Why?  Well, the insurance industry has effectively "gagged" anyone from telling the jurors why the case is going to trial.  Typically, the reason for that is that the insurance company who pulls the strings on the defendant, WANTS the case to go to trial, because they know that for every case that goes to trial, 99 just give up, and the insurance company gets to pay less than what is "fair and just" as the rules require.

Here are some of the "hidden" rules and insurance practices that you only learn about after you've been hurt by someone else's negligence.

You Can Not Mention the Insurance Company at Trial

Under no circumstances can a Plaintiff mention the word “Insurance” in trial, even though the person who is being sued has insurance. You cannot mention Insurance, nor can your witnesses, including the doctors, police or anyone else who may testify for you. If you do, the judge will grant a “mistrial” and we will have to try the case over again.

NC Rule of Evidence: Rule 411. Liability insurance.

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. 

Insurance is available in at least 99% of all auto accident cases that go to trial. But, the insurance industry has lobbied the legislature so diligently that it has created a set of court rules that absolutely prohibits the lawyers representing injured people from telling the jury the truth that the little old lady in the defendant's chair has had no choice in whether she is sitting there or not. She cannot settle the case even if she believes you deserve everything you are asking for.

The insurance company is completely in control of how much to offer the injured person, whether to settle the claim or not, and what they should contest in the lawsuit. So, even if the little old lady sitting in the defendant's chair wanted to settle the lawsuit for the same amount as what the injured person is requesting, the insurance company won't offer the money.

In North Carolina, the Plaintiff has virtually no right to sue an insurance company for improperly denying a claim or delaying the payment of what is due. Again, effective political contributions, and legal maneuvering by insurers have resulted in these rules.

Its cheaper to deny the claim than settle.

Believe it or not, insurance companies have saved Billions of dollars since the mid 1990s, by improperly denying claims, and otherwise forcing litigation by paying far below the jury verdict average to settle claims. Frivolous defenses to legitimate claims have resulted in an increase in litigation, against people insured by these companies. This is part of a deliberate claim handling program implemented by McKinsey & Company, the same consulting firm that set up Enron's business model, at many of the nation's largest insurance companies. See "Record Insurance Profits" Article

But, in jury selection, jurors often mention that if the injuries are real, the case should have settled with the insurer. That is exactly what the insurance company is hoping for. It doesn't matter if they offered $0.50 on a claim worth $500,000. The jury will never know, because the lawyers are prohibited from ever mention the settlement negotiations during the trial.

McKinsey & Company counted on this when they told Allstate Insurance in the mid 1990's to quit treating people with “Good Hands” and instead treat them with “Boxing Gloves.” When Allstate forced more litigation and posted record profits, the rest of the insurance industry followed their lead. It is now standard operating procedure in the insurance industry to spend multiple times what a reasonable settlement would be to fight the claim, simply to prove to injured people and their lawyers that filing a claim for injuries is more trouble than it is worth. Read a Transcript of Anderson Cooper's Interview with one of Allstate's Victims

That is because the end result is that most lawyers will not take the cases, and people will not file the claims themselves. These improper denials have led to a huge spike in bankruptcies in the United States, the leading cause of which is an inability to pay for medical bills. So, when jurors turn injured people away, everyone but the person at fault, and their insurer pay for the damage. Instead, the jurors take the financial burden themselves through higher taxes to pay for the bankruptcy. For more, see the article entitled “In Tough Hands” in BusinessWeek. 1.800.906.5984

Judge Paul Ridgeway Rules Witnesses can be Sworn in With Quran

One of our local (Wake County) Judges has ruled that witnesses in court can now be "sworn in" with just about any religious text, including the Quran.  I completely agree with this decision and applaud Judge Paul Ridgeway for the courage to do the right thing.

Interestingly, the stories don't mention that witnesses already have the ability to "affirm" to tell the truth when being "sworn in."  This was an accomodation for people who's faith did not allow them to "swear" on the bible.

It only makes sense that a witness can provide their own religious text upon which to swear they will tell the truth.  I guess the point of the excercise is that if you truly beleive in the teachings of the bible, you would not want to offend God by lying.  So if you don't belive in the Bible as holy scripture, shouldn't you be able to swear on something you do believe in?

Honestly, I think this decision is only news because it involves the Quaran and Muslims.  Had we been talking about the King James v. the New King James v. English Standard v. New American Standard v. Revised Standard (RSV) v. New Revised Standard, etc, no one would have cared.  Of course, many folks argue over the "validity" of each of those translations of the bible.

I think Judge Ridgeway saw through the politics of the controversy, and realized that anything that promotes the real search for truth, would suffice. 

From the Greensboro News-Record

Muslims can now swear on the Quran when called as witnesses in North Carolina courtrooms, a Wake County judge ruled Thursday.

The decision represents a victory for the American Civil Liberties Union of North Carolina , which sued the state after two Guilford County judges rejected an offer from an Islamic center to provide county courthouses with free copies of the Quran.

"The highest aim of every legal contest is the search for truth," Wake Superior Court Judge Paul Ridgeway wrote in an 18-page opinion. "To require pious and faithful practitioners of religions other than Christianity to swear oaths in a form other than the form most meaningful to them would thwart the search for the truth.

"It would elevate form over substance."

The Guilford County judges argued that North Carolina law only allowed oaths to be taken on the Bible. Ridgeway agreed that a phrase in the law governing oaths, "Holy Scriptures," refers to the Bible, but he cited other case law that would allow a Muslim to swear on the Quran.

Chris Nichols 1.800.906.5984

MySpace to Begin Sharing Information on Sex Offenders

I think this is a decent idea, in general terms, though I doubt that it will do much to actually prevent predatory practices. 

Realistically, if a sexual predator is being "smart" they will have no real identifying information on their MySpace profile.  Given the absolute ease of setting up free and virtually untraceable email accounts, I don't see any way for MySpace and the Attorney General's office to "trace" predators to MySpace.  About the only thing that i can think of would be to require sexual predators to register their ISP Providers and addresses, and trace the original source of the profile that way.

I'll be interested to see if this actually "eliminates" any predators.  It is one thing to prevent predators from coming near schools and libraries.  The Internet is just so unregulatable, and is essentially one "big" play gorund for kids, and those who seek them.

MySpace to share sex offender data with states

RALEIGH, N.C. - Faced with legal demands from several state attorneys general, said Monday it will immediately begin sharing data on the registered sex offenders it has identified and removed from the popular social networking Web site.

MySpace balked last week when attorneys general from eight states, including Ohio, demanded it provide data on how many registered sex offenders are using the site and where they live.

The company said federal privacy laws required the states to file subpoenas or other legal requests before it could release the information. MySpace general counsel Mike Angus said company officials met with North Carolina Attorney General Roy Cooper and Connecticut Attorney General Richard Blumenthal last week to sort out the details of those requests.

"We hope to get requests from every state," Angus said. "From day one, we have preserved all the information in the hopes of getting these requests."

MySpace, owned by media conglomerate News Corp., obtained the data from Sentinel Tech Holding Corp. The companies partnered in December to build a database with information on sex offenders in the United States, and Angus said MySpace has already used the database to remove about 7,000 profiles out of a total of about 180 million.

The companies "developed 'Sentinel Safe' from scratch because there was no means to weed (sexual predators) out and get them off of our site," Angus said.

Last week, attorneys general in North Carolina, Connecticut, Georgia, Idaho, Mississippi, New Hampshire, Ohio and Pennsylvania asked for the Sentinel data. The company initially refused, saying the federal Electronic Communications Privacy Act required the states to file a subpoena or similar legal request before it could release the data.

North Carolina filed a civil investigative demand Monday, and states including Ohio, New York and Connecticut also pursued subpoenas. Blumenthal said his subpoena "compels this information right away - within hours, not weeks, without delay - because it is vital to protecting children."

Cooper said the information from the Sentinel system could potentially be used to look for parole violations or help in investigations. He said lawmakers in North Carolina are considering legislation that would further restrict access to social networking Web sites, including one that would require parents' permission for minors to set up a profile.


Chris Nichols 1.800.906.5984

New Sex Offender Site Unveiled

Cooper unveils upgraded sex offender registry Web site

Associated Press

SMITHFIELD, N.C. - North Carolina now has an updated sex offender registry Web site for citizens who want more specific information about where child molesters, rapists and other criminals live.

View the new website here: 

N.C. Sex Offender Registry:

The upgrades, announced Monday by Attorney General Roy Cooper, allow anyone to receive e-mail alerts when a sex offender moves in a neighborhood or near a school. The Web user also can view maps that highlight how many registered sex offenders live in within a 1-, 3- or 5-mile radius of a specific address.

"Families and neighborhoods will be able to use these new tools to plan for their safety," Cooper, a Democrat, said in a news release. "Knowing more about where offenders live will help communities stay vigilant about safety." 1.800.906.5984

Liens and Workers' Compensation

I had the pleasure of speaking this  morning at the North Carolina Academy of Trial Lawyer's Workers' Compensation Roundtable Seminar.  I was pinch hitting for a number of State and federal Employees who were supposed to talk about:  Medicaid, Medicare, State Employee Health Plan, and TriCare.

Instead, they got me.

I am posting a link to my PowerPoint presentation for  those in attendance who wantde the "paper" copy of my talk.  Here is the link:  Ahlborn PowerPoint Slide show

Thanks for all the great questions!

Chris Nichols 1.800.906.5984

Corporate and Insurance Company Propaganda and Lies

Looks like AOL (America On Line) is attempting to pass off urban legend as news. 

This post is very important, and I hope that anyone coming to this webpage reads the whole post!

The America Online (AOL) website titled "Most Outrageous Lawsuits." Appears in the money and finance section of AOL and is also prominently displayed on the AOL home page.   The "most outrageous lawsuits" section contains mistruths and has been consistently debunked by web sites like   Snopes is the leading website that actually does research into "urban legends" and provides the truth behind the distortions.  It you have ever heard of the "Stella awards" (fake awards for "outrageous lawsuits"), here is the specific post from Snopes that proves the Stella awards are lies, or distortions:

The public has seen this propaganda before.  The "crazy lawsuits" they describe come directly from groups like Citizens Against Lawsuit Abuse (CALA) and the American Tort Reform Association (ATRA), groups whose sole mission is to dismantle the civil justice system and eliminate accountability for corporate negligence.  In the past, when such front groups have provided examples of "cases," they haven't even been real.

AOL is preying on an unsuspecting public that assumes what is posted on its site is news, all to make the case that they, and other negligent corporations, should not be held accountable for wrongdoing in our courts.

There is good reason for AOL to invest its resources in the misinformation campaign to eliminate the right of Americans to seek justice.  In the past few years, it is the civil justice system that has been the last resort for shareholders and investors to hold AOL accountable for their negligence. The following are just a few examples of the trouble AOL has gotten in:

  • Just this week AOL agreed to pay $246 million to compensate the




    for losses to their pension and endowment funds after the company's stock prices plunged in 2001-2002. The University alleged that AOL inflated it stock price prior to its merger with Time-Warner by misrepresenting its sales, revenues and subscriber numbers.
  • On February 26, 2007, Time Warner reached agreements to pay $405 million to settle lawsuits related to past accounting problems at AOL.
  • On February 7, 2007, AOL reached a $105 million settlement with the California State Teachers' Retirement System that claimed that AOL executives and bankers had artificially boosted the value of its stocks prior to buying Time Warner.
  • In December, 2006, AOL settled a securities fraud case for $50 million with the state of


  • In 2005, Time Warner settled a $2.4 billion securities fraud lawsuit stemming from their misstatement of advertising revenue on the eve of its merger with AOL.

The American Association for Justice has made several attempts to get this propaganda pulled from the website but AOL has refused.  You can help, so consider taking the following steps:

If you are a member of AOL tell them to stop running this feature on their website by posting a comment;

Call the Chairman and CEO of AOL, Randy Falco, at (703) 265-1000 and ask him to take down the information;

Circulate this information to others who will take action; and

Send to any legal and political blogs you frequent.

Insurance Companies would like the public to think that all lawsuits are "frivolous".  "Frivolous" lawsuits get weeded out of the system by judges and lawyers (who refuse to bring them) LONG before they get to court.  In NC, every case that gets filed goes through multiple levels of independent review, from the moment the law suit is filed.

The most important of those levels of review is the "motion for summary judgment" or "motion to dismiss."  In every case, the lawyer for the defense can come into the court room, and tell the judge "this case is crazy, please dismiss it."  And Judges dismiss cases all the time.  Only cases where the Judge believes there is a reasonable argument survive.

After the motions to dismiss, in NC, in every lawsuit with a value over $10,000 ALL parties are required to attend a mediation.  At mediation, an experienced lawyer or judge makes the parties face reality and encourages settlement. 

Here is what NC's Judicial Website says about mediation:

Most citizens think of cases filed in our courts as coming to a close only after long and bitterly fought trials. After all, that is what they read in newspapers and see on television. However, the truth is that most cases filed in our State’s civil Superior Courts are never actually heard by a judge or jury. Instead, they settle on the parties’ own terms. Too frequently, that settlement occurs on the courthouse steps -- just before the trial is set to begin and the plaintiff and defendant have endured a long, sleepless night or nights. The Mediated Settlement Conference Program is designed to offer parties, with the help of their attorneys and a mediator, an opportunity and the support they need to settle their cases earlier

In my experience, 99% of cases that do not settle, do not settle because the Insurance Company, who hires the lawyers to defend the defendant, takes an unreasonable position on settlement.  That position is usually "we won't pay a dime because we didn't do it', or "we will only offer you a very small amount, but we will NEVER apologize for what we did."

Most lawsuits would go away with an apology.  That may be hard to believe, but in many cases it is true.

Chris Nichols 1.800.906.5984