If I’m injured, how am I at fault?

If I’m injured, how am I at fault?

Who’s injured and who’s at fault can make a difference

Here’s an all too familiar situation: someone injured in a motor vehicle accident calls my office.  Medical bills are piling up and they aren’t getting better.  They receive a phone call or letter from the insurance company that states the claim is denied.  The reason?  The insurance company states that the person injured in a motor vehicle accident was also at fault.  But, what about the injury?

Contributory Negligence

Contributory negligence is defined as the failure to exercise due care for one’s own safety.  A reasonably prudent person under the circumstances would remove their headphones and/or look both ways before crossing the street.  In North Carolina, Contributory Negligence is a complete defense to suit where contributory negligence was a proximate cause of the injury.  This means that if your conduct was the factual cause of your injuries, and the risk of such injury was reasonably foreseeable, you cannot recover.

However, there is a very important exception that may be available to those injured in a motor vehicle accident: the doctrine of last clear chance.

The “Last Clear Chance” doctrine imposes a duty upon the driver in the above example to exercise ordinary care to avoid injuring you, one who has negligently placed himself in a situation of danger.

For example, if the driver sees you walking in the road way, oblivious to his blaring horn, and he can avoid hitting you, he has a duty to do so.  If the driver fails to avoid you when he could have, then he can still be held liable, even though you were at fault for failing to take care to avoid injury to yourself.

Additional exceptions exist to the general rule in North Carolina that one who is contributorily negligent may not recover.  Contact my office for a free consultation regarding your situation.

Sharing fault can make a difference

Sharing fault can make a difference

Can my ex get my settlement money?

Can my ex get my settlement money?

Can my ex get my settlement money?

The question that I’ve heard from time to time is “can my ex-spouse get my personal injury settlement or workers’ compensation checks for child support?”

The answer is case specific, and if you’ve been injured in an accident at work or were in a motor vehicle accident, I recommend contacting me to discuss the details.  However, generally speaking, no, an ex-spouse is not automatically entitled to a personal injury settlement or an injured employee’s workers’ compensation checks.

However, if child support is owed by a noncustodial parent, also referred to as arrears, the North Carolina Department of Health and Human Services may create a child support lien against the insurance settlement.  The lien is not available in all cases and is not automatic.  For a more thorough discussion on North Carolina’s laws regarding child support and personal injury settlements, check out the following link here.

It is important to identify whether child support is an issue in workers’ compensation cases or personal injury cases.  Injured workers and victims that are under a child support order should be aware that they may be able to petition the court to modify the order since they may be missing work due to the accident, and therefore not making as much.  An application to modify a child support order in North Carolina is available here.   Accident victims should realize that the modification is likely effective the date of the motion, and not the date of the accident.  In other words, if you owe child support or under a child support order and were injured at work or elsewhere, you may want to contact an attorney, sooner than later in order to discuss your options.

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Brian Elston Law is a personal injury law office in Asheville, NC, dedicated to fighting for people who need it most. Our practice areas include personal injury, workers compensation, wrongful death, employment law, civil litigation and more.

At Brian Elston Law our success comes from our willingness to serve individuals and families all across North Carolina with our high-quality personal injury and workers' compensation advocacy. We know how difficult it is to suffer a personal injury and / or workplace injury and how hard this must be for you and your family. Our team of attorney’s are here to help you make the process as easy and stress free as possible. To learn more about what our firm can do for you, just give us a call or a text. If you would like to learn more about how our firm can assist with your case, we encourage you to contact us immediately. We are proud to offer 100% free, confidential consultations.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

The verdicts and settlements listed on this site are intended to be representative of cases handled by Brian Elston Law. These listings are not a guarantee or prediction of the outcome of any other claims.