Get Answers to These FAQs We Hear the Most
We know how many questions you must have right now about your personal injury or workers' comp case, so we compiled this list of the questions we hear the most. If you have a question that is not answered here, please call our Columbia law office to speak with Kenneth Berger.
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Negative Effects of Drunk Driving: How does alcohol affect a driver?
It seems that not enough drivers in South Carolina are making the responsible decision not to drink and drive. South Carolina consistently ranks among the worst states for drunk driving accidents, and over 300 people were killed in DUI crashes in our state alone in 2016. What is it that makes alcohol so dangerous when someone gets behind the wheel?
How Alcohol Affects Driving
Alcohol affects the body in many ways. Not only does it take a toll on health over time, the immediate effects make it dangerous to engage in any activity requiring skill, attention, and coordinated movement. Sensory perception is reduced, nerve-to-muscle transmission is impeded, and decision-making and higher brain functions all suffer, leading to effects such as:
- Altered judgment. Alcohol can make clear thinking, good decision-making, and planning ahead difficult, and can increase risk-taking behaviors—all critical skills for operating a vehicle.
- Lowered ability to concentrate. Driving a car involves a lot more concentration than many people realize, but when your ability to focus on the many tasks involved in driving goes away, such as steering the car, maintaining a safe speed, staying in your lane, and avoiding other cars, the risk of an accident increases greatly.
- Loss of coordination. Alcohol causes changes in the parts of the brain that control motor skills, too, which slows down reflexes and decreases the ability to safely steer or use the gas and brake pedals appropriately.
- Impaired vision. Alcohol relaxes the muscles that control the eyes, causing blurred vision and slower visual reaction time. Alcohol also decreases peripheral vision, meaning that drunk drivers have a difficult time seeing anything that isn’t directly in front of them, including other cars, pedestrians, and other hazards or obstacles in the road.
As these effects take hold in the body, the intoxicated driver may not sense dangerous situations, react appropriately to a hazard, or be able to control his or her vehicle. This can lead to a serious accident that not only hurts the drunk driver, but also leaves other innocent drivers and passengers seriously injured—or worse.
Talk with Our Drunk Driving Accident Lawyers Today
If you have been hurt by a drunk driver, the Law Office of Kenneth E. Berger is here to help you seek the justice you deserve in a court of law. Not only do we serve clients in the Myrtle Beach, Florence, and Columbia areas, we are here for you no matter where you are in South Carolina. For a free consultation with a legal professional who cares about you and your family, call us today at 803-790-2800 (Columbia, SC) / 843-427-2800 (Myrtle Beach, SC), or start a live chat 24/7 with a real, live person to arrange a free and confidential consultation.
How serious is the drunk driving problem in South Carolina?
It is easy to think that your chances of being in an drunk driving crash are low, especially if you are a responsible driver yourself and make the choice to never drive when you have been drinking. However, drunk driving is a serious problem both nationally and right here in South Carolina. All it takes is one accident with a drunk driver to change your life forever, leaving you or a loved one with severe, permanent injuries—or even your life.
Drunk Driving Statistics in South Carolina
Drunk driving incidents are more common than many people realize. Over a million drivers were arrested for DUI across the nation in 2015, according to Centers for Disease Control and Prevention data, and more than ten thousand people were killed in DUI crashes. So where does South Carolina stand?
The fact is that our state ranks consistently amongst the worst states for drunk driving. Here in South Carolina, a full one-third of all fatal accidents in 2016 involved a driver with a blood alcohol level (BAC) at or above the legal limit—331 lives were lost that year.
Of particular concern in South Carolina are Myrtle Beach and the surrounding areas. The Grand Strand is well-known for being a highly-trafficked route through the region. With tens of thousands of visitors coming to enjoy the sights, sounds, and party atmosphere of the local area, it means that the risk of a DUI accident is disproportionately high all across Horry County—where a traffic accident happens every 48 minutes, according to the South Carolina Department of Public Safety.
Legal Help After Being Injured in a DUI Wreck
If you have been hurt or a loved one has been killed by a drunk driver, you have our deepest sympathies. We are here to help those who have been hurt recover from drunk driving injuries by seeking financial compensation in a court of law, and we would like to be there for your family in your time of need, too. Our drunk driving accident lawyers serve those who have been injured in DUI crashes caused by other drivers in the Myrtle Beach, Florence, Sumter, Lexington, and Columbia areas, and across the entire state of South Carolina, as well.
To speak to an experienced legal professional who cares about your case, please call us today at 803-790-2800 (Columbia, SC) / 843-427-2800 (Myrtle Beach, SC), or start a live chat 24/7 with a real, live person to arrange a free and confidential consultation.
How do Drunk Driving Accidents Differ from Other Car Accidents?
What makes a DUI crash different? Crashes caused by drunk drivers can be devastating. There is simply no excuse for someone to become intoxicated, then get behind the wheel, yet it continues to happen in South Carolina. Not only do these wrecks tend to be more severe, they are also different legally. Here’s what you should be aware of if you’ve been injured by a drunk driver.
Criminal Law Versus Civil Law in a DUI Accident Case
One of the biggest sources of confusion after a driving under the influence (DUI) accident involves the difference between civil and criminal cases. It’s true that driving under the influence is a crime, and civil authorities will pursue drunk drivers in order to carry out the law. However, the criminal case does not address compensation for items such as medical bills. To hold the driver - and their insurance company - financially responsible, you will need to file an insurance claim, and potentially a lawsuit in our civil courts.
It’s a common misconception that you can’t sue someone who is facing criminal charges. Nothing could be further from the truth. The civil and criminal justice systems function independently of one another, and you absolutely can bring a civil action against someone who is being prosecuted criminally. Being convicted and in jail affords no protection from a civil suit. However, a conviction isn’t necessary to begin your civil case, as the standards of evidence in civil court are different than criminal court. Moreover, an acquittal or dismissal of the criminal charges in no way impacts your ability to hold the drunk driver accountable financially under South Carolina's civil system. Put simply, the criminal and civil DUI cases are completely independent of each other.
Punitive Damages and Drunk Driving Accidents
After an auto accident, you may seek "damages" for expenses such as hospital bills, physical therapy, lost wages, diminished earning capacity, repair or replacement of your property, physical pain, lost quality of life, and more. In addition, punitive damages may also be sought against the drunk driver. Punitive damages are designed to punish particularly bad behavior, as well as provide a warning to anyone in the future who may commit similar acts. Punitive damages may be awarded to victims when the accident was caused by gross negligence or recklessness, which is inherently present in drunk driving accidents.
Help for DUI Accident Victims in South Carolina
If you’ve been injured in a car accident that was caused by a drunk driver here in South Carolina, the Law Office of Kenneth E. Berger is here to help. Our drunk driving accident lawyers represent those who have been hurt - not drunk drivers - and we can help you navigate the complex world of insurance companies, personal injury lawsuits, damage awards, and medical liens. To schedule a free consultation with us, call us today at 803-790-2800 (Columbia, SC) / 843-427-2800 (Myrtle Beach, SC), or start a live chat 24/7 with a real, live person to arrange a free and confidential consultation.
For answers to questions you have about car accidents and DUI issues right now, please download our book, “Safety First, Justice Always: Your Guide to South Carolina Auto Accident Law.” It’s completely free and can help you understand your rights as a victim after a DUI crash.
What is the Statute of Limitations Against CSX and Amtrak in SC?
How Much Time You Have to File a Lawsuit Against Amtrak
Anyone injured in the 2018 collision between the Amtrak passenger rail and CSX cargo train will likely have 3 years to bring a lawsuit under the laws of South Carolina. Nonetheless, because South Carolina law only allows 2 years to bring suit against government defendants, and since various state agencies responsible for railway maintenance may ultimately be named as defendants based on their own negligence, I would encourage you to not to wait. Likewise, I could foresee lawyers for the train companies arguing that the statute of limitations from other states actually apply, with some potentially being as short as one year.
Don't Wait to Speak with a Train Accident Lawyer
This answer is not intended to make you feel rushed, but rather help you stay informed of your rights so that those rights may be protected. The statute of limitations in all civil cases - whether state or federal - is critical because missing it often serves as an absolute prohibition against bringing suit or obtaining recovery. For additional information regarding the CSX-Amtrak wreck, please visit our train accident page.
What Should I Do If I am in a Crash Caused by a Drunk Driver in South Carolina?
Hit by a drunk driver? Every serious car accident has the potential to cause harm, but a collision caused by someone that is driving under the influence (DUI) can be truly devastating. Here’s what you should do if you are involved in a car accident and suspect that the at fault driver was drunk.
DUI Signs to Look for After a Car Crash
If you suspect drunk driving caused the crash, your first step should be to call 911. A police response means that a trained investigator will be able to examine the other driver. If he or she tests positive with law enforcement, not only does it help your legal case later, but you are helping to take a dangerous driver off the road.
While you wait for the authorities to arrive, keep your eyes open. If it’s safe to do so, consider completing the following steps:
- Use your smartphone to take pictures or video of the scene, but do not approach an obviously intoxicated driver.
- If you see any open alcohol containers or drug paraphernalia, report it to the police.
- Report the use of mouthwash, breath spray, or eye drops immediately after the accident since the driver could be attempting to conceal intoxication.
- If you notice the driver attempt to switch seats with someone else in the car, tell the police what you saw, as it could lead to serious charges.
- After the crash, you may consider contacting a personal injury attorney who helps DUI victims.
What You Need to Know After Being Hit by a Drunk Driver in South Carolina
- The state is responsible for pressing criminal charges.
After being hit by a drunk driver, many injured people and their families want to know how to hold the drunk driver criminally responsible for their reckless actions. Driving under the influence is against the law in South Carolina and across the country, so if the person proves to be intoxicated by drugs or alcohol, they will be arrested at the scene of the wreck and a state prosecutor will press charges against the driver. If you would like to be involved, you can contact the prosecutor or victim’s advocate, and request to speak at the driver’s sentencing. Our law firm also maintains a relationship with solicitors offices and can help ensure you are part of the process (if you choose).
- You can file a civil claim against the drunk driver to hold them civilly and financially responsible for your injuries.
In addition to the state’s criminal proceedings, you can file a civil claim to hold the drunk driver accountable for the harm you experienced. You can begin the process by contacting the defendant’s insurance company and filing a claim for your damages. The insurance provider will then open an investigation and will attempt to close your case by offering to pay you in the form of a settlement. At that point, you may choose to accept their offer or negotiate a larger settlement. Keep in mind that insurance companies make money by paying claimants as little as possible, so many people choose to hire drunk driving injury lawyers to handle negotiations with the insurance company and help ensure they receive a fair settlement.
- The insurance company should consider various damages when determining a full, fair settlement amount.
When determining if the insurance company has offered you a fair settlement, consider the costs associated with the below damages:
- Medical expenses
- Lost wages
- Property damage
- Lost enjoyment of life
- Future medical treatment
- Punitive Damages
If the offer from the insurance company won’t cover your medical bills, your inability to continue making the same wages, or the medical treatment you’ll need in the future, I’d encourage you to consider scheduling a free consultation with an experienced drunk driving accident lawyer in South Carolina to ensure your rights are protected.
- Even if the drunk driver who caused the accident was uninsured, you may still be able to seek recovery from your own insurance company.
In South Carolina, every car insurance policy comes with “uninsured motorist coverage.” This type of insurance coverage is designed to protect you against uninsured drivers – including intoxicated drivers. You can purchase uninsured motorist (UM) coverage up to the limits of your liability policy, so if you have $100,000.00 in liability coverage, you may also have $100,000.00 in UM coverage that you can rely on for recovery if the drunk driver did not have auto insurance.
- Even if the DUI driver only had minimum limits insurance, you may be able to recover compensation from your own underinsured motorist policy.
Every auto insurance policy sold in our state must also give you the opportunity to buy “underinsured motorist coverage” up to the liability limits. Underinsured motorist (UIM) coverage protects you and your family when an at-fault driver is insured but lacks sufficient coverage to pay for all your losses. For instance, if a drunk driver crosses into the wrong lane of traffic and causes a head on collision, the injuries could be severe. Your medical bills may be $500,000.00. However, the intoxicated driver might only have $25,000.00 in coverage. This is a situation where your UIM coverage would kick in and pay for losses that the drunk driver’s policy could not cover. You may be also be able to “stack” your policies to secure additional compensation. To learn more, check out this article on stacking insurance policies.
- In addition to actual damages, you may be owed punitive damages due to the drunk driver’s recklessness.
Punitive damages are designed to punish the drunk driver for the conscious disregard he showed toward public safety when he chose to drive under the influence. In addition to receiving the “bodily injury” policy limits, punitive damages allow you to receive the entirety of the “property damage” policy limits. This means that if you were involved in an accident with an intoxicated driver in South Carolina, the insurance money available to you may be 50%-100% greater than under normal circumstances.
- If the drunk driver became intoxicated at a bar or restaurant, you may be able to recover compensation from the establishment’s insurance company.
The law holds us responsible for our actions. Therefore, if a bar serves a customer too much alcohol, then allows that person to get on the road, the bar could be required to pay for any harm the drunk driver causes. This is known as South Carolina dram shop liability. Like UM and UIM coverage, dram shop liability can sometimes be the difference between a life spent paying back medical bills and recovering fair compensation. To learn more about South Carolina’s dram shop laws, read this library article: Over-Serving Establishments and Dram Shop Laws.
- An experienced injury lawyer can help ensure your legal rights are protected after being hit by a drunk driver in South Carolina.
DUI accidents can cause permanent injuries and even death, but you only get one shot at a fair settlement. Once you sign a release, you no longer have the right to seek additional recovery, even if you later discover that you’ll need additional medical treatment as a result of the accident. That’s why it’s incredibly important to consider speaking with an attorney before settling your case. A drunk driving accident lawyer can effectively investigate your DUI crash, identify additional sources of recovery, negotiate with the adjusters, and take your case to trial if a fair settlement cannot be reached.
Get Legal Help After Being Hit by an Intoxicated Driver
If you have been hurt in an accident caused by a drunk driver, please know that our entire team at the Law Office of Kenneth E. Berger will do everything in our power to hold all responsible parties accountable and obtain justice on your behalf. With offices conveniently located in Columbia and Myrtle Beach, we’re able to serve clients across all of South Carolina. Call us today at 803-790-2800 (Columbia, SC) / 843-427-2800 (Myrtle Beach, SC), or start a live chat 24/7 with a real, live person to arrange a free and confidential consultation.
What is the Statute of Limitations For a Wrongful Death Action in South Carolina?
Statute of Limitations Against Governmental Defendants
The time in which you have to file a lawsuit is known as the statute of limitations. Under the laws of South Carolina, you have 2 years to bring a lawsuit - also known as a civil action - against governmental defendants. For instance, if you wanted to hold a county hospital or one of its doctors responsible for medical malpractice, you would most likely only have 2 years from the date the malpractice was committed.
Statute of Limitations Against Non-Governmental Defendants
For wrongful death actions against non-governmental defendants, you generally have 3 years from the date of the incident. One example would be in a lawsuit seeking to hold a company accountable for its defective airbags. Let's say Takata or another airbag manufacturer had a defective product in the vehicle, and the defect caused a loved one's death, you would have 3 years from when the accident occurred to bring suit.
There are caveats to these umbrella rules, such as cases when the act of malpractice is not discovered until months or even several years after it was committed, but when possible, you do not want to come anywhere close to running out of time to bring a civil action.
Investigating Wrongful Death Claims Takes Time, Don't Wait
Often times, it takes great effort and a significant period of time to properly investigate potential wrongful death claims prior to initiating a lawsuit. In other words, if you have questions about a potential case, it is important to contact a South Carolina attorney early enough in the process to: a) avoid rushing into litigation; or b) creating any statute of limitations issues.
If you are dealing with the loss of someone you care about, and have any questions about what could have been done to prevent their passing, please do not hesitate to contact us. There is no consultation fee. Likewise, we do not want you second-guessing yourself down the road about what actions could have been taken to uncover the truth and hold the negligent parties responsible.
For more information about wrongful death claims and statutes of limitations in South Carolina, call our Columbia office at (803) 790-2800, or you can start a live chat to speak with a member of our team at any time. We are sorry for what you are going through and look forward to being of service.
What is an Attractive Nuisance?
Child injury law is a little bit different than regular adult personal injury situations, due to the natural curiosity and relative inexperience of young ones. In many cases, children simply don’t know better, and may do things that could lead to serious injury or even death. Children may not understand the consequences of their actions, or find themselves in situations that for an adult would not normally be hazardous. When the stage is set for a child to be hurt in a way that an adult should have foreseen, that situation or circumstance may be legally called an “attractive nuisance.”
Defining an Attractive Nuisance
Attractive nuisances are a part of the concept of premises liability. Premises liability is a part of the law that allows a visitor or guests on a property to seek compensation from the owner of that property in case of an injury caused by the owner’s negligence. Property owners are generally expected to protect visitors from harm with routine maintenance, appropriate safety and security precautions, and either removing or marking hazards for guests to avoid.
In most cases, premises liability law does not protect trespassers—the visitor must be invited to the property either explicitly, or in cases of business locations, implicitly, by being open to the general public. However, the law makes an exception in certain circumstances of trespass involving children.
Examples of Attractive Nuisance
Here are some of the key criteria that help define an attractive nuisance case:
- The property owner was aware or should have been aware that children could trespass on the property. An example might be a highly visible property that is located near a school, along a school route that children regularly use, or near a playground or other location that children visit.
- There was some unsecured danger, condition, or hazardous item on the property that caused serious injury or death to a child, such as an unfenced swimming pool, trampoline, or other unprotected amusement that could cause harm.
- The child or children involved in the accident were not old enough to understand the potential risk to life or limb that exists on the property.
- The property owner must have failed to take reasonable precautions to prevent an injury or death, such as with a locking gate or by securing dangerous equipment.
- There must be a real benefit to fixing the hazard or securing the property with regard to the health and well-being of potential child trespassers. For example, it is not usually reasonable to prevent a potential child injury by destroying every swimming pool. Installing a locking gate to prevent child access, however, is likely a reasonable precaution that should be taken.
When all of the above factors come together in a situation where a child has been hurt or killed, attractive nuisance law comes into play.
Children are our most valuable asset for the future. We as adults have a duty of care to ensure that children are safe from our negligence, because they simply don’t have the capacity or experience to understand the very real hazards that exist all around us every day. Failure to uphold that duty can lead to severe injuries and tragic losses of life that could have been avoided if only an adult had taken the time to care and the responsibility of maintaining his or her property.
A South Carolina Child Injury Lawyer Can Help You Seek Justice
If your child has been injured on someone else’s property and you think you may have a case for an attractive nuisance, the Law Office of Kenneth E. Berger is here for your family. We can help you seek compensation from the person responsible for your child’s injuries so that you can recover hospital costs, doctor visits, rehabilitation, long-term care, and more. Our office is conveniently located in Columbia, and we proudly service all of South Carolina, including the Sumter, Florence, and Myrtle Beach areas. To arrange a consultation with a legal professional today, call us by phone, send an email via the contact link, or click the live chat box on this page right now.
Prove Texting and Driving: How Can I Prove the Other Driver Was Texting at the Time of the Wreck?
There are thousands of rear-end collisions on South Carolina's roadways each year. Often times, the person who has been injured knows intuitively that the at-fault driver was distracted - most likely by a cell phone. In fact, in 2017, nearly 10,000 South Carolina car accidents were caused by distracted drivers. But how can you prove this fact when the other person will almost certainly deny it?
In my experience, there are 4 very important steps that can be taken to prove texting and driving.
4 Legal Steps to Prove Texting and Driving After a Car Accident
1. A preservation of evidence letter (also known as a "spoliation" letter) should be sent to the distracted driver and his/her insurance company as soon after the wreck as possible. The letter my office uses demands that the cell phone, along with text, email, Facebook, Instagram, Snapchat, Internet usage, and all other data history be preserved exactly as it existed at the time of the accident. If we learn that the phone was tampered with, or any potential evidence was deleted after receipt of our "spoliation" letter, we can seek to have the judge inform our jury of this fact in the event the case goes to trial. That looks very bad for the defendant. On the other hand, if evidence is not destroyed, we may very well have our "smoking gun" in the form of text messages that were sent and received in the moments leading up to the collision. Either way, a preservation of evidence goes a long way towards proving distracted driving.
2. In the event a lawsuit becomes necessary, we conduct what is known as “discovery.” In other words, we seek to discover as much as possible about the crash while uncovering every piece of evidence. Initially, we send out written discovery requests, known as interrogatories, requests for production, and requests to admit, to establish that texting – or some other form of cell phone distraction – caused the crash.
3. After a lawsuit is filed, South Carolina law allows subpoenas to be sent to any person or entity in possession of potential evidence. To this end, a subpoena should be sent to the negligent driver's cell phone provider to obtain cell phone records. While the subpoena response may only provide a call history or monthly data usage, it can provide evidence of how much time the at-fault driver spends glued to their cell phone.
4. If depositions are required to further prove the case and hold the driver responsible for his/her actions, the attorney should dig in on the distracted driving issue. This is especially true for rear-end collision and blown stop sign cases. Simply put, a driver does not run into the back of someone else unless he is going far too fast for conditions, following too closely, or driving while distracted. Many times, it is some combination of these dangerous variables. Though the defendant may not fully admit to using his cell phone at the time of the wreck, he will be forced to admit at least one major safety law violation (speeding, tailgating, taking his eyes off the road for a dangerous length of time) or look very foolish denying it. No matter his answer, you win.
Auto Accident Attorneys Can Help Prove Distracted Driving
If you were injured in an auto accident in the Columbia area due to a distracted driver—or any other reason—you should contact the Law Office of Kenneth Berger for a free consultation. A car accident lawyer can help injured people after an accident by handling the crash investigation, negotiating your insurance claims, and representing you in any lawsuits that you need to claim a full and fair recovery.
The attorneys at the Law Office of Kenneth E. Berger have years of experience handling cases like yours, and would be honored to help you and your family with the legal recovery process while you focus on healing. We have handled distracted driving cases across South Carolina for a number of years now and would be glad to assist you as well. If you believe the person who crashed into you was on a cell phone, but need help proving it legally, we are here to serve. Our offices are conveniently located in Columbia and Myrtle Beach, and we proudly serve the Sumter and Florence areas, as well as the entire state of South Carolina. Call us today at 803-790-2800 (Columbia, SC) / 843-427-2800 (Myrtle Beach, SC), or start a live chat 24/7 with a real, live person to arrange a free and confidential consultation. We look forward to hearing from you, and to holding the dangerous driver accountable.
Who Is Legally Responsible for Injuries on Rental Properties in South Carolina?
Owners, Renters, and Maintenance Companies Are Responsible for Property
Regardless of whether the accident occurs at a commercial (e.g. office building, restaurant) or residential location (e.g. apartment, beach house), the owner, renter, and any company who performed construction or maintenance on the property may be liable. These cases are very fact specific, but South Carolina law generally follows the age-old rule that people are responsible for their actions. Property owners must fix or warn people of dangerous conditions. Renters must not endanger their guests. Companies that work on site must meet the standards and follow the rules of their industry.
Filing Claims with Multiple Insurance Companies After Injury
Depending on whose negligence contributed to the injury, a claim may be filed with multiple insurance companies. For example, some people carry renters insurance. Most landlords will also have either a homeowners' or commercial policy. Likewise, if it was a construction or maintenance company's negligence that caused the accident, their insurance company should be notified. As you can tell, there is often a lot of finger pointing between the various potential defendants. In most instances, the insurance companies want to blame each other, but rarely do they want to step up and take responsibility for the harm that has occurred.
Fortunately, South Carolina's premises liability laws - which govern accidents on rental properties - demand that innocent people be made 100% whole. Multiple insurance companies may have to contribute for damages such as medical bills and severe physical pain, and in the end, regardless of who pays what, it must add up to 100% of an innocent person's losses. As the saying goes, "anything less than full justice is injustice." In fact, that is not just a saying, but rather the law of South Carolina.
For more free answers to questions regarding your accident case, simply call the personal injury attorneys at my office today at one of our convenient statewide numbers, or use our 24/7 live chat feature. We look forward to helping you as we have countless others.
Our offices are conveniently located in Columbia and Myrtle Beach, and we proudly serve the Sumter and Florence areas, as well as the entire state of South Carolina. Call us today at 803-790-2800 (Columbia, SC) / 843-427-2800 (Myrtle Beach, SC), or start a live chat 24/7 with a real, live person to arrange a free and confidential consultation.
Can I Sue the Insurance Company for Bad Faith in South Carolina?
Yes, so long as certain elements are met, insurance companies can absolutely be sued and held accountable for their wrongdoing. Remember, all insurance policies are contracts. The insurer promises to pay money in the event of an accident, and in return, the insured pays a premium. In South Carolina, the law says there is an implied covenant of good faith and fair dealing in every contract. When that covenant is violated, it is considered bad faith, and opens insurance carriers up to lawsuits.
For People With a Claim Against Their Own Insurance Company
Who can bring such a suit? The first example would be the individual or entity with the insurance contract. For instance, if you needed to undergo a medical procedure or you were suppose to receive long term disability benefits at work or your property was damaged in the 2015 flood in Columbia, and the insurance company refused to fully and timely fulfill its obligations under your contract with them, it could be considered bad faith. If that were to happen, you could potentially take legal action against them to not only obtain the benefits you were paying for by way of your premium, but additional damages related to the consequences of their wrongdoing.
For People With a Claim Against Another Person/Business' Insurance Company
The next example of who may pursue a bad faith action in South Carolina is a little more complicated, but I'll explain. So let's say you were involved in a car accident and your medical bills are $25,000.00, you missed 3 weeks of work, you're still having significant back pain, and the person who ran into you has admitted fault. In that scenario, you would have a claim against the at-fault driver's insurance company. But let's say instead of acting reasonably, the liability insurance carrier only offers you $10,000.00. They claim that after reviewing your medical history, it appears that you had degenerative disc problems, and they do not believe your current issues were caused by the wreck (despite the fact that you had not had any back issues in years, were working everyday, and going to the gym 4 times a week). It sounds absurd, but this kind of thing happens everyday. What can you do?
The bad news is South Carolina law does not allow you to sue another person's insurance company. The good news is there is a way around it. So what you have to do is first get a verdict against the insured, at-fault party, that is in excess of the insurance policy limits. Next, you would get the at-fault party to assign you his rights against the insurance company in return for not going after his assets. For example, if the negligent driver who hurt you only has $50,000.00 in insurance and you obtain a $350,000.00 verdict against him after his insurance carrier acted unreasonably or in bad faith by not settling the case sooner, you would give the defendant the option of either paying you the $300,000.00 difference, or assigning you his rights to go after the insurance company.
Hold Them Accountable For Their Bad Faith
To summarize, insurance carriers must put the people and entities they insure first. They must act in good faith, and deal fairly. When they do not, either with their insured or someone their insured hurt, legal action may be taken. However, unlike more basic claims, bad faith lawsuits - and often times the verdicts that are first required - will almost certainly take a lawyer who understands this highly nuanced area of law. If you have questions about an insurance claim, accident case, or any aspect of South Carolina's bad faith laws, simply call me at 803-790-2800 or request free copies of my books.
Insurance companies promise to protect people. My job is to make sure that promise is kept, and hold them accountable when it is broken.