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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Can I still file a lawsuit after a motorcycle accident if I wasn’t wearing a helmet?
It’s something that no rider likes to think about for long, but the fact remains that riding a motorcycle carries an inherent level of danger, and accidents can cause devastating injuries. Even the most careful rider on the road can’t always account for the behavior of other drivers. Sooner or later, another vehicle may cause a crash with a motorcyclist, and the rider may not be wearing a helmet in South Carolina. In situations like this, one of the biggest questions that attorneys get asked is from victims who wonder if they can still sue the other driver for the accident.
Filing a Motorcycle Accident Lawsuit in South Carolina
The answer to whether you can file a lawsuit is a qualified “yes.” You can absolutely file a lawsuit against another driver whose negligence or recklessness caused your motorcycle accident, even if you weren’t wearing a helmet. The success of your suit will depend on a few important factors.
First, it’s important to realize that South Carolina law says riders over the age of 21 are not legally required to wear a helmet. In other states, where wearing a helmet is required, your lawsuit could face a much greater challenge, since not wearing a helmet directly violates the law. This situation can occasionally catch riders who cross state lines without realizing the change in law over the border. One example is when riders visiting Myrtle Beach during Bike Week may decide to venture further afield and cross the nearby North Carolina border, where helmets are required. If an accident happens across the border and the rider is not wearing a helmet, an injury lawsuit could be more difficult, particularly if it involves a head injury.
Even in states like South Carolina, there may be some challenge to a lawsuit if you suffered a head injury, as the other driver may claim that not wearing a helmet contributed to your head injury. However, there is a powerful legal tool that can still help victims recover in situations like these.
Comparative Negligence in South Carolina
When the other driver offers a challenge to your lawsuit, South Carolina follows a type of law called “comparative negligence” to determine who is responsible for the injuries and other damages in an accident. What this means is that under South Carolina law, even if you are found partially responsible for your injuries, you are still eligible to receive compensation, so long as you can demonstrate that the other driver (or drivers) were more than 50 percent responsible for the accident.
When determining your final compensation under comparative negligence rules, the award will be reduced based on how much liability you are found to have for your injuries. For example, if the court finds that the other driver is 80 percent responsible for the accident and that you are responsible for the remaining 20 percent, your award will be reduced by 20 percent. In this situation, if you were awarded $50,000 by the jury, it would be reduced to $40,000. However, if you were found to be over 50 percent liable, you would not be eligible to receive any award at all.
Most states these days have accepted some form of comparative negligence as law, but a few (including our neighbors, North Carolina) still follow a rule called “pure contributory negligence.” In these states, if you are found to share in any part of the responsibility, you are not allowed to receive any damages at all.
Wearing a Helmet Can Save Your Life
While you are under no obligation to wear a motorcycle helmet in South Carolina if you’re over the age of 21, the fact is that helmets save lives. Statistics from the Centers for Disease Control and Prevention show that wearing a helmet reduces the risk of death by as much as 37 percent, and reduces the risk of head injury by 69 percent.
If you’ve been in a motorcycle accident, don’t hesitate to reach out to a personal injury attorney as soon as possible. An attorney can help you protect your legal rights in an accident and determine if you are able to seek compensation from the ones responsible for your accident.
The Law Office of Kenneth E. Berger is proud to stand up for the rights of motorcyclists across all of South Carolina, including the Myrtle Beach, Columbia, and Florence areas. To speak to an experienced legal professional and arrange a consultation about your motorcycle crash case, call or email us today.
Who Is Legally Responsible for Injuries on Rental Properties in South Carolina?
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.
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 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.
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, 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.
How Can I Get Fairly Compensated for My Permanent Physical Impairment After a Car Accident?
In South Carolina, compensation in a civil case is based on "damages." This may include past medical expenses, lost earnings, physical pain, and mental anguish. Lesser known damages are those related to permanent injuries. However, the law is clear on this point. If another driver's negligence causes you harm, you should be compensated for past, present, and future losses. Often times, the insurance carrier will try to settle the case only weeks or months after the wreck. The settlement offer will be based on what you have experienced to date, but not what you face in the future.
So what can be done to ensure that all damages - including any long-term impairments - are properly valued? First, there must be medical documentation. That does not mean you should go out and lie to a doctor about your condition. Rather, it means to be forthright with medical professionals about any and all ways the accident still affects you. For instance, if you are having neck or lower back pain 9 months after the wreck, your doctor needs to know that. It will help your case, but more importantly, it will help ensure you get the medical care you need.
At some point, the doctor will likely conclude that you have reached a plateau. This is known in South Carolina as "maximum medical improvement." It does not mean you are 100% better, only that you have made as full a recovery as you are going to make. This is the appropriate point in time for a doctor to issue an impairment rating. For example, let's say you had to undergo back surgery after your car accident. Your treating orthopedist may give you a 15% impairment rating to the spine once you complete physical therapy. The impairment rating will be based on medical guidelines.
In presenting your case to the insurance carrier, we would note the impairment rating. However, the emphasis would be on how the injury will permanently affect your daily life. Whether the greatest impact is on your work, family, or recreational pursuits, insurers must properly compensate you for all the ways your life has been altered.
Along with physical restrictions, your long-term injuries may remain painful and require future medical care. South Carolina law allows you to recover for those ongoing and future damages, but you only have one bite at the apple. In other words, your one-time settlement must account for every damage you ever have or ever will incur. That is why it is so critical to properly identify any permanent injuries and the consequences arising from them, before settling.
I have given presentations on this topic for other lawyers, and would be glad to speak with you about compensation for future damages, or any other aspect of your auto accident case. To speak with me, call my Columbia, SC office today at 803-790-2800.
Do Parents Receive Any Type of Compensation If Their Child Is Injured in South Carolina?
I represent lots of children, which means I meet with lots of parents. The focus is always the young person's health and well being. A secondary concern is whether mom and dad are entitled to compensation for losses arising from their child's accident. The answer is "yes and no."
South Carolina law allows parents to make a claim for any medical bills their son or daughter incurs. For instance, if your child has a $30,000 hospital charge, you could recover that portion of the claim (fyi: don't let an insurance adjuster tell you that you can only recover the co-pays). Likewise, your child is permitted to recover money for their physical pain, lost quality of life, impairment, and other non-medical losses.
Conversely, parents do not receive money for the time they miss from work or the stress they experience due to their child's injury. The only exception in South Carolina is when the parent actually witnesses the accident. This is known as "bystander liability" because the negligent party is liable not only for the child's injuries but also the shock that comes to the parent who sees their son or daughter get hurt.
Injuries to children often take a financial and mental toll on families. You do not have to bear that burden by yourself. I help families across South Carolina, and am here to help you as well. Call my office today for a free consultation at 803-790-2800.
Should I Sign the Health Authorization Forms The Insurance Company Sent Me After My Car Accident?
Keeping up with all the insurance company and claim information following a wreck can be challenging. So can deciding which forms you must sign, which forms you should sign, and which documents you should just throw in the trash. The at-fault party's insurance carrier is going to want all your healthcare information - not just the bills and records related to your accident. Therefore, the HIPAA forms they send you are usually very broad. You do not have to sign their health authorizations, however.
3 Options to Consider
In fact, I recommend one of three options to my fellow South Carolinians:
- Contact the adjuster and tell him/her that you will sign a HIPAA form that applies only to medical records since the date of the accident;
- Toss the health authorization form in the trash, and obtain the medical bills and records yourself;
- Consult with an attorney on the best course of action.
I offer free consultations, but even without having to meet in person, I can tell you that my general rule of thumb is this: in small cases (i.e. one hospital visit to get checked out and maybe a couple follow ups to your family doctor) signing a healthcare release probably isn't a big deal. The reason is that even if you had a number of preexisting conditions, the value of your case should not change based on past medical history.
Conversely, if you have a case that has significantly impacted or altered your life, please don't sign any type of insurance or healthcare forms without at least speaking to a lawyer. Insurance companies will dig through your entire medical history to use anything and everything they can against you. Rather than allowing an insurance adjuster to use that information against you, consult with a lawyer who can show you how your preexisting conditions actually help your case.
Contact an Expert If You're Unsure
Health authorizations - just like recorded statements and early settlement offers - are simply a ploy to pay you less than fair compensation. I help injured people throughout South Carolina, and would like to help you as well. Whether it be with free copies of my books or a free consultation, there is absolutely no harm in allowing me to answer questions about HIPAA forms or any other aspect of your accident case.
Can Unpaid Medical Bills From a Car Accident Affect My Credit?
The short answer is "yes." There are lots of misconceptions about how medical bills get paid following a car wreck. Some people think the at-fault driver's insurance company will pay the bills directly. Other people have been told that health insurance does not apply in accident cases.
In South Carolina, it works like this:
1. You receive all reasonable and necessary medical care;
2. The hospital and other medical providers bill your health insurance company;
3. You are responsible for any co-pays or deductibles, just as you would be with an ordinary visit;
4. The at-fault driver's insurer pays you a settlement or you obtain a jury verdict;
As you can see, you may not recover money from your auto accident prior to your outstanding bills being sent to collections. The way to avoid this - and in turn, keep your credit from being affected - is to make payments, however small, on your bills throughout the case. Your settlement should account for all medical expenses (in other words, you will get paid back), but a settlement may not be reached until many months after the initial injury.
Unpaid bills arising from car crashes are treated just like any other bill by hospitals, doctors' offices, and collections agencies. That is why it is so important to reach out to those providers early on, explain to them your financial situation, and agree to a payment plan that you can afford. This will keep your credit score from declining, and prevent any further financial harm.
Dealing with insurance carriers and billing departments can be daunting, especially as you try to recover from your injuries. I help people in these situations across South Carolina, and will gladly provide you with a free consultation. For guidance, request free copies of my books and call 803-790-2800.
How Is Lost Income Calculated in a Personal Injury Case?
Under South Carolina law, the person or entity that caused your harm must make you whole. In other words, they must compensate you for every loss their negligence caused. One of these losses may be income. Whether the accident forced you to miss 2 days or 2 months of work, the wrongdoer's insurance company is required to account for your lost earnings. Likewise, if your injuries affect your ability to make the same amount of money in the future as you did before the accident, you should be compensated for the difference.
Determining Lost Earnings
Insurance adjusters occasionally tell people that the portion of the settlement that accounts for lost income is based on post-tax earnings. If an insurance person makes such a statement about a South Carolina claim, please know they are lying. For example, if you earn $800 per week and miss 5 weeks of work due to your injuries, you would be owed $4000, not your net earnings.
Why You Need a Team of Experts
When it comes to lifelong injuries that impact your lifetime earnings, experts are often needed to perform the calculation. A vocational evaluator will assess what jobs are available to someone with your injuries, education, and skill set. An economist will then project how much income the accident will cause you to lose over the course of your life.
Get Back What's Rightfully Yours
No matter the degree of lost earnings, South Carolina law requires that responsibility for all losses falls on the shoulder of the negligent party, not the innocent victim. If you have questions about any aspect of a personal injury case, including how to calculate lose wages, I am here to help. Call me for a free consultation at 803-790-2800 or submit a contact form here.
How Much Should the Insurance Company Compensate Me for Scars Caused By an Accident in SC?
The answer to this question depends on whether your case falls under South Carolina's civil or workers' compensation system. For example, scarring caused by a car accident or burn that occurred away from work would be compensated differently than an on-the-job injury. Allow me to explain:
A personal injury case is intended to provide money for every harm you sustain, from medical bills and lost earnings to scarring and mental anguish. Insurance companies will evaluate how much you are likely to receive from a jury, then offer you a settlement in light of the potential verdict. Thus, a scar to a more visible part of your body such as your face or arms will be valued more highly than a scar to the foot. If that seems insensitive, I agree. South Carolina civil law does not set a standard for how much money an innocent person should receive for their scars. Instead, this issue is decided either by negotiations with an insurance carrier or at a jury trial.
Our state's workers' compensation laws are just the opposite. If you suffer a scar at work, you are capped at 50 weeks of compensation (i.e. two-thirds of your average weekly wage "x" 50) for this aspect of your injury. Therefore, if the weekly check you received while you were out of work was for $400, the most you could receive for scarring would be $20,000. That is not to say you would be prevented from receiving additional money for other injuries, only that South Carolina law caps what you may obtain due to the scar.
In sum, accident victims are likely to receive far greater compensation for scarring in a civil action than a workers' comp claim. And while most scars heal within the first year, some are permanent. It is my sincere hope that you heal and never require money for permanent injury. Nonetheless, much like people who went to medical school to help patients get well, I practice law to help people recover from accidents. Now that you have found my firm, you no longer have to battle the insurance companies by yourself. Call me today for a free consultation at 803-790-2800. My office is in Columbia. My practice is statewide.
Does the Insurance Company Pay the Hospital After a Car Accident?
Unfortunately, insurance companies often provide injured people with lots of "misinformation" following a wreck. One of the most common and most egregious examples is when they tell you that they are obligated to pay the hospital directly, rather than sending you the money. In South Carolina, auto insurers are required to provide you - not your medical providers - with the settlement funds. You have an obligation to pay back the hospital and any other providers who treated you, but that obligation has nothing to do with the auto insurance companies.
There are two situations in which an insurer might attempt to mislead you into believing the money skips over your head and straight to the hospital:
1. Personal Injury Protection/Medical Payment Coverage
Personal Injury protection, also known as "medpay," is designed to cover a portion of your medical bills. Most South Carolina drivers have $1000-$5000 dollars in medpay coverage. These funds come from your own insurance company. You receive this benefit because you pay for it as part of your premium. Thus, if you are in an accident, the medical payment funds should be mailed directly to you. It is entirely up to you whether to apply that money to your bills.
2. Liability Insurance Coverage
The at-fault driver's insurer is required to compensate you. The money you receive is for your injuries, lost earnings, and other harms. Once again, these funds must be sent directly to you because you - not the hospital - are the one that got hurt. Do not let the insurance adjuster convince you that money from your settlement should be sent to anyone else.
Contact a Lawyer Today
The issues you face after an auto accident are not as simple as some people would have you believe. From how medical bills get paid to how much you should be compensated, it is always better to receive a free consultation from an attorney than to rely on an insurance company that increases its profits by paying you less. I help people with questions like yours across South Carolina, and would be glad to speak with you. Call my office today at 803-790-2800.
Not ready to speak to a lawyer yet? Visit our auto accident overview page for more information.