North Carolina Trial Law Blog

People!  Do not let the statute of limitations slip past on your personal injury cases in North Carolina.  I've had three calls this week from people who did not have lawyers and who waited until the last second, or past the last second, to call for advice. None of these calls ended on a happy note.

In NC you have three years to settle or file a lawsuit for personal injury (but not death, that's two years)

In North Carolina you have three years to either settle a personal injury case or file a lawsuit.  I did not say "file a claim."  I did not say "talk with an insurance adjuster".  I did not say "be in the middle of negotiations."  

On the third anniversary of your car wreck, you either need to have a settlement worked out, in writing and agree upon by the insurance adjuster and you, or you need to file an actual lawsuit in a court of law in NC.

If you are still negotiating with that adjuster at midnight on the third anniversary of your car wreck, you can never get anything for your claim.  The next minutes that adjuster will say "Sorry, your statute of limitations ran, you have no claim."  And so you ask, "Wouldn't the insurance company tell me that my time is running out?"  The answer is NO.  In fact, I've seen situations where the insurance adjusters actively seek to delay the settlement.

The wrongful death statute in North Carolina has a two year statute of limitations

If the car wreck resulted in a death, or wrongful death in North Carolina, the time limit is TWO YEARS. Also, to sue for the wrongful death of a loved one, there must be an Estate set up in the name of the deceased and an Administrator or Executor must actually be the party that sues.  Cases like that look like this:

The Estate of John Doe, Susan Doe, Administrator      V.       Big Truck Company, LLC 

Setting up an Estate takes time. And even though there may be one type of Estate set up, it might not be the right type to bring a wrongful death claim.

I think I get this statute stuff, do I have to have a lawyer?

Not every case needs a lawyer.  Really, a lawyer just told you that.  I talk to a lot of people on the phone, give them a few pointers and send them on their way.  It's sometimes a good idea to settle your own case when it is simple and small.  But complicated cases probably need lawyers. So it's always a good idea to call a lawyer like me, and ask.

But really, if you call me on the day that your statute of limitations is about to run out, there is a 95% chance that I will not be able to save you and your case.  Lawyers can not send an email to the court to file a lawsuit.  It sometimes takes days to draft the paperwork.  We have to find the Defendant and make sure we can serve them with papers. We need to see police reports.  This takes time.

In law we frequently abbreviate Statute of Limitation as SOL. And if you miss one, you are SOL on your SOL. 

When is the latest you should call a lawyer for a personal injury case?

I would say that the latest that I would get in touch would be six months before the statute runs out.  Put another way, two and half years after the accident for personal injury and one and a half years for wrongful death.  That gives the lawyer time to gather your medical records, talk to experts, file the lawsuit, and get it served on the defendant.  You see, even though the insurance company pays the claim, the other driver is the one who gets named in the lawsuit. So it's not as easy as my office sending a letter to State Farm. We actually have to send the Sheriff or a certified letter to someone so they can be "served."

If you waited past two and half years, you should still call for advice.  Just know that a lot of lawyers don't like taking cases that close to the statute of limitations.

What about children or kids?  How long do minors have to settle their personal injury claims or file a lawsuit?

In NC, a minor is anyone under age 18.  Minor's statute of limitations work differently than adults. A  minor's statute does not BEGIN to run until they are age 18.  Then it runs the normal 3 years for personal injury.  Crazy, right?  So if you are in a car accident at age 2, you will have until your 21st birthday to settle the claim or file a lawsuit!  This is also true for other injury claims, like sexual abuse.

But there is a catch....  (there is always a catch, right?).  The catch is this:  In North Carolina, the medical bills for an injured minor (anyone under age 18) "belong" to the mom, dad, or legal guardian of the minor.  What does that mean?  It means that because a minor can't sign a contract, when a minor goes to the hospital or doctor and has a bill for services, that bill is actually the parent or guardian's bill.  Don't pay it?  The parent or guardian gets sued by the hospital, not the minor.

So what's the catch?  Well, the catch is this- in the example above where the two year old gets hurt in a car wreck, let's assume the medical bills are $50,000.  Three years from the date of the wreck, the parent/guardian's statute of limitations to sue for those medical bills expires. So on 3 years +1 day, the minor can still sue for pain and suffering and other economic wages, but NOT for past medical expenses.

But, there is a catch to the catch!  There is a way for the parents to assign the claim for medical bills to the minor child so that those medical bills become part of the claim for the minor that does not run out until age 21.  This can be tricky and I recommend lawyer supervision to deal with this.  The good news is that it can be done quickly, so if you are reading this on the 2 year 364th day of the anniversary of an injury to a minor, it might not be too late to fix that problem.  Call me!

Heartbreaker

I spoke to someone today who told me that the adjuster was discussing her case with her one day before her three year statute of limitations. She even asked if that was going to be a problem and the adjuster said "you have an open file claim." That made the person feel good, even though it was a meaningless phrase.

When she called the day after the 3 year anniversary of her accident, the adjuster said "sorry, you didn't file a lawsuit in time, you have no claim."

No, she can't sue him for that.  Adjusters work for the driver that hit you!  Their job is to pay you the least amount of money possible. That's what they get paid to do. Not all of them are this heartless, some would warn you to get a lawyer or file a law suit. A lot of them are very good people. But consumers don't really have the information or ability to decide who is who.

I had to tell this fine person that she no longer had a claim.  It was a heartbreaker.

So if you've been waiting, even if you are still being treated for injuries, please call me or another lawyer and just get some advice (free and over the phone) on your time limits and whether you even need a lawyer.  I've been doing this (looks at watch) for 23 years now, so I've probably handled a case like yours before.  Let's talk.

Chris Nichols, Attorney

800-906-5984

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
By MARGARET LILLARD
Associated Press Writer

READ THE ORIGINAL ARTICLE HERE

Chris Nichols

www.NicholsTrialLaw.com

Looks like the Attorney General of NC is revamping the NC Sex Offender online registry.  The registry is often out of date, and I suppose some people think it is hard to navigate.

This seems like a lot of money to spend on a website revamping, though I suppose the data base work is complicated, especially since most of the state's databases are unique and require special programming.

As the article suggests, a database is only as good as the data, and there is only so much law enforcement can do to make sure that offenders keep their status updated.  The "cell phone" tracking will be interesting to watch and will require some good technology to see where the offenders are going and whether that is in violation of the terms of probation.  Of course, statistically, most offenders are molesting children of family and friends, and not hanging out at elementary schools, but it's a start.

READ THE FULL ARTICLE (11/20/06 - RALEIGH) - Convicted sex offenders will have fewer places to hide from authorities in 2007, say state officials who on Monday unveiled an updated registry Web site and satellite tracking system for the worst offenders

"The ultimate goal is to pull all of our resources together to help protect our kids," Attorney General Roy Cooper said after demonstrating to a House committee a new Web site touted as more friendly to citizens looking to monitor the state's roughly 9,900 registered offenders.

   Legislators over the summer agreed to pay $200,000 for the upgraded Web site and passed a sweeping sex offender law. The law, effective Dec. 1, bars registered offenders from living close to schools or daycare centers or volunteering where they would interact from minors.

   Cooper asked the committee to spend an additional $304,000 next year to pay for the mapping software and hire two workers to operate it.

   Since 1996, people convicted of various sex-related crimes have had to register with their local sheriff.

   The new law also orders the Department of Correction to create a program by Jan. 1 in which up to 300 of the worst offending registrants are monitored electronically for life. The monitoring involves ankle bracelets and other technology that tracks their positions by satellite.

   Down the street from the committee meeting at the Legislative Building, a few hundred Correction Department probation officers learned about the new tracking law during a training session at a Raleigh hotel.

   Robert Lee Guy, director of the Division of Community Corrections, told probation managers that the efforts will help the state keep a better eye on sex offenders out in the community. And unlike current electronic house arrest efforts, he said, the satellite monitoring isn't optional for a judge to order.

   "We've got to pay attention," Guy said. "We can't leave any loopholes or cracks in sex offender management."

   Registered criminals classified as sexual predators or repeat or violent offenders will have to carry a 15-ounce tracking device if they leave their home. A satellite tracks the person's location and alerts probation officers when they travel too close to a victim's residence or office.

   Cell phone towers transmit the real-time information to probation officers. In the mountains, where cell phone service is tricky, the offender's movement will be downloaded daily when they come home and recharge the unit.

   Guy said he knew of only six registered sex offenders that will be equipped with the device.

Chris Nichols Nichols Law Firm

Sex Offenders Must Register
                        The North Carolina Sex Offender and Public Protection Registry was established in January 1996 due to the General Assembly's enactment of Article 27A of Chapter 14 of the North Carolina General Statutes (NCGS 14-208.5). This law requires a person who is a resident of North Carolina and who has a reportable conviction to maintain registration with the sheriff of the county where the person resides. If the person moves to North Carolina from outside this State, the person shall register within 10 days of establishing residence in this State, or whenever the person has been present in the State for 15 days, whichever comes first.

The site is maintained by the NC State Bureau of Investigation (SBI).

You can search the registry by Zip Code, City, County, Status of offender, and name of offender.

Click here to search the North Carolina Sex Offender Registry.

It is always a good idea to know what is in your neighborhood, or your child's school neighborhood.

Chris Nichols
Nichols Law Firm Website

I stumbled across an old post today on the website of the National Association to Protect Children, which bills itself as "America's First Political Lobby to Protect Children."  The Association is based out of Asheville, my old stomping grounds.

The author of the article, Grier Weeks, details the long path that a NC bill to toughen incest laws took through the legisalature and political circles.  It shows the "gap" that sometimes exists between theory and practice on issues concerning the protection of children.  In politics, those with the strongest voice, and often the deepest pockets, get the most "movement" on laws.

The PROTECT website sums it up as:

Children don't vote—but neither do firearms, clean air, or whales. Adults protect their self-interests with money, lobbyists, and modern campaign strategies. Children make no political contributions, don't hire media specialists, and can't form PACs.  

 

Children's protection is our responsibility, but too often we have offered children nothing more than vague non-profits and feel-good rhetoric.

Thankfully, groups like Week's stand up for children and give them a voice.

The article is interesting and worth a read.  READ IT HERE.

-Chris Nichols
www.NicholsTrialLaw.com

Before I set up my firm in Raleigh, I practiced in the western part of North Carolina and lived in Hendersonville, south of Asheville.  I still maintain an office there as part of an "of counsel" relationship with my old law partners.  I have family there as well whom I particularly enjoy visting when it is 98 degrees in Raleigh with 95% humidity in June.

Hendersonville is considering adopting a local ordinance that would ban all registered sex offenders from entering certain public areas, such as parks, libraries, and recreation centers. 

Read the Asheville-Citizen Times Story of Banning Sex Offenders from Public Places Here

The story also cites a new NC law that will go into effect later this year that bans Sex Offenders from being within 1,000 feet of a school.

I like the idea of this law, but I'm a bit worried about the scope.  One of the problems that I see is not so much the law itself, but the fact that one can become a "registered sex offender" for crimes that do not involve children. 

Ways to become a Registered Sex Offender in NC
The following crimes get you on the list:
 

1. G.S. 14-39 Kidnaping.
 
2. G.S. 14-41 Abduction of Children.
 
3. G.S. 14-43.3 Felonious Restraint.

 

1. G.S. 14-27.2 First Degree Rape.
 
2. G.S. 14-27.3 Second Degree Rape.
 
3. G.S. 14-27.4 First Degree Sexual Offense.
 
4. G.S. 14-27.5 Second Degree Sexual Offense.
 
5. G.S. 14-27.6 Attempted Rape or Sexual Offense.
 
6. G.S. 14-27.7 Intercourse and Sexual Offense with certain     victims.
 
7. G.S. 14-178 Incest Between Near Relatives.
 
8. G.S. 14-190.6 Employing or Permitting Minor to Assist in     Offenses Against Public Morality and Decency.
 
9. G.S. 14-190.16 First Degree Sexual Exploitation of a Minor.
 
10. G.S. 14-190.17 Second Degree Sexual Exploitation of a Minor.
 
11. G.S. 14-190.17A Third Degree Sexual Exploitation of a Minor.
 
12. G.S. 14-190.18 Promoting Prostitution of a Minor.
 
13. G.S. 14-190.19 Participating in Prostitution of a Minor.
 
14. G.S. 14-202.1 Taking Indecent Liberties with Children.
       
        This also includes a conviction for solicitation to commit or conspiracy to commit a     "sexually violent offense".

C. An Attempt to Commit any of the Preceding Offenses.

D. A final conviction for Aiding and Abetting of an offense against a minor or a sexually violent offense would be registerable, if the court finds registration would serve the purpose of the Registration Act.

What about the "adult" offenses?
The offenses that include minors seem perfect for sex offense status that would prohibit the offender from staying away from children and places where children gather. 

The other offenses, committed by adults, against adults, while horrible, should not keep an offender out of the library.

Situational Offenders
The psychological research tell us that the profile of a child predator and an adult rapist can be very different. On the other hand, there is a group of people called "situational offenders."  These are people who are not pedophiles (i.e. they don't have a particular sexual attraction to children versus adults) but they choose their victims based solely on opportunity (who's easiest and most accessible).  There is study by Lanning, of the FBI’s behavioral sciences unit, who wrote a 1987 paper, Child Molesters: A Behavioral Anaylysis:

“Situational-type sex offenders victimizing children do not have a true sexual preference for children. They may molest them, however, for a wide variety of situational reasons. They are more likely to view and be aroused by adult pornography, but might engage in sex with children in certain situations. Situational sex offenders frequently molest readily available children they have easy access to such as their own or those they may live with or have control over. Pubescent teenagers are high-risk, viable sexual targets. Younger children may also be targeted because they are weak, vulnerable, or available. Morally indiscriminate situational offenders may select children, especially adolescents, simply because they have the opportunity and think they can get away with it. Social misfits may situationally select child victims out of insecurity and curiosity. Others may have low self-esteem and use children as substitutes for preferred adults.”

The Dilemma
The situational-type offenders are the ones that this new law may have the best "effect" upon.  the people that have committed crimes against adults, but "could" go after children if the opportunity arose.  At the same time, I still worry about limiting people that do not prey upon children.  It is a tough balance to strike, but one that should always favor the safety of children.

I personally don't think that child molesters can be rehabilitated.  Thus, let's keep them as far away from kids as we can.  On the other hand, adults that have committed offenses against other adults should be allowed into the library, or be able to drop their children off at school.

Click below to read more on this subject

I received an interesting comment to one of my blog posts from Ron Franscell, the managing editor of the Beaumont (TX) Enterprise, a 60,000-circulation daily newspaper a Beaumont, Texas.  His blog post can be found here.

Breaking news in Texas

Ron's paper just broke a news story about a "sex ring" involving high school football players and their coaches.  It seems the coaches were recruiting young high school women to "volunteer" to have oral sex with players on the football team.

The victim and other students [the detective] has interviewed mentioned a group that called itself the 3K, which stands for the "Kutchie Kissing Klique."

[The detective} described the group as "a group of guys who sought to have oral sex with younger girls."

Indictments are not proof of guilt

So far, it appears there is only tangential proof that the coaching staff is involved.  There is an indictment of the coaches, but I've learned in many years practicing law that an indictment does not mean guilt.  To quote a great lawyer I know, "A grand jury could indict a ham sandwich."

To digress, at a grand jury in NC, only the prosecutor and the law enforcement officials testify, so the indictment is, to say the least, one sided.  The strength of the indictment really depends on how much the District Attorney wants to prosecute.

I'll be interested in watching how this unfolds.  By all accounts, high school football in Texas is bigger than ACC basketball along Tobacco Road.  I suppose we will see.

Meaningful Analysis

And just so this post does not miss any meaningful analysis, I have seen in my practice that any group that is given a high level of respect from the community, a certain level of of lawlessness, and protection from authority, usually degenerates into abuse.

Having said that, it is the responsibility of the adults to regulate the bahavior of their minor charges.  I will bet that we will see, if the coaches are truly involved, a history of sexual expoitation on the part of the adults.

-Chris Nichols

I keep reading about the ever increasing number of reported cases of female teachers have sex with their male (and female) students.  Everyone seems shocked by that fact, and I suppose that normally when one thinks of inappropriate teacher student relationships, they think of creepy male teachers and their female students.

The website World Net Daily  has compiled the summaries of all the latest female teacher cases in sort of a "mug shot" style article.

I used to work with a fantastic lawyer named Elizabeth Kuniholm who has a national reputation suing perpetrators of sexual abuse.  I have some experience working on these types of cases which are both tragic and complicated.  I can't quite figure out if there has been a rise in female molestation or if some other societal factor is playing a part here. 

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