3/29/10
Road to Comparative Fault in North Carolina
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North Carolina is one of only five jurisdictions that retain the antiquated doctrine of contributory negligence. Here, as in Alabama, Maryland, Virginia and the District of Columbia, a plaintiff whose negligence makes the slightest contribution to his injury is barred from recovering any damages against the tortfeasor. The other 46 states, either by judicial decision or by statute, have adopted some form of comparative fault, allocating damages based on the degree of fault among the plaintiff and the defendants.
In May 2009, the North Carolina House of Representatives passed a bill that would abolish contributory negligence, adopt a system of modified comparative fault, and modify joint and several liability. Modeled on the Uniform Apportionment of Tort Responsibility Act (UATRA), the bill attracted bipartisan sponsorship and support. After the sponsors agreed to several last-minute amendments that favored defendants, the bill (HB 813) passed by a margin of 67-50, overcoming strong opposition from business and insurance interests.
In the 2010 session, the North Carolina Senate will consider HB 813. If the bill passes the Senate, it will end the long, harsh regime of contributory negligence, and bring North Carolina tort law into the modern era. This article discusses the provisions of UATRA, the amendments adopted in the House, and the principal objections to the bill.
Attorney Burton Craige published an article entitled The Road to Comparative Fault in North Carolina in this month's issue of The Litigator, the regular publication of the North Carolina Bar Association's Litigation Section. Click here for full article.
Posted by liz at March 29, 2010 8:22 AM CDT
3/22/10
Can an Injured Worker Be Fired for Instituting a Workers' Compensation Claim?
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Often, injured workers wonder what will happen to their jobs if they choose to pursue their protected rights under the Workers' Compensation Act. This is particularly true given the recent economic troubles that the nation has faced in the last several years. Jobs are hard to come by and the last thing that an injured worker wants to do is lose their job because of a workers' compensation claim.
In 1992, The North Carolina General Assembly enacted the Retaliatory Employment Discrimination Act (REDA). This act protects employees or anyone acting on behalf of an employee against any retaliatory acts related to rights protected under the Workers' Compensation Act, the Occupational Safety and Health Act, the Mine Safety and Health Act of North Carolina, and the Wage and Hour Act of North Carolina . REDA defines a retaliatory action as "discharge, suspension, demotion, retaliatory relocation, of an employee, or other adverse employment action taken against and employee in the terms, conditions, privileges, and benefits of employment." The protected rights include filing a complaint or claim, initiating an inquiry, investigation, inspection or any other proceeding, testifying or providing information to any person with respect to any of the acts listed above.
So what does this mean for the injured worker? This means that should you file a workers' compensation claim, your employer cannot fire you, demote you, suspend you, or move you to another position or job location, merely because you have instituted a workers' compensation claim. If the employer does take such action against you, the employer has to prove with the greater weight of the evidence that it would have taken the same action in the absence of your workers' compensation claim.
If any of your clients have questions about whether they have been the victim of employment discrimination, they should contact the North Carolina Department of Labor Employment Discrimination Bureau. You may also wish to provide the injured worker with the name of a competent employment law attorney to discuss any issues or concerns that the injured worker may have. If you are an attorney who does not regularly practice in employment law issues, you may also want to consult with an employment law lawyer regarding these issues prior to settlement or clinchering your case to avoid potentially releasing any potential REDA violation claims your client may have. For more information, click here.
Posted by liz at March 22, 2010 10:13 AM CDT
3/15/10
Working with Your Lawyer
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The key to any successful attorney-client relationship is communication. Communication creates trust, and being represented by an attorney you can trust to handle your legal matter is of paramount importance. Unfortunately, the time demands placed on the lawyer and frustration and misunderstanding on the part of the client can cause a breakdown in communication and erode the trust in the relationship. This can in some circumstances cause severe and hazardous consequences to the client's case. Fortunately, however, there are things both the lawyer and the client can do to keep the lines of communication open and preserve the relationship.
Your lawyer should keep you reasonably informed about your case. This should include providing you with periodic updates on the case's progress and explaining to you what unfamiliar events and terms mean. If you haven't heard from your lawyer and you would like to know what is going on, don't be afraid to call and ask. Keep in mind, however, that any type of litigation can be time consuming and a certain amount of patience is necessary. Your lawyer should also include you in the decision-making process. You should also know that certain decisions, such as whether to settle your case, are solely yours to make.
Communication is not solely the responsibility of the lawyer. You as a client should also undertake steps to ensure that your lawyer knows what is going on with you and your case. Lawyers are trained to determine what facts are significant and insignificant to your legal claim. If you have information that you think might bear any relevance to your case, then make sure to share that with your lawyer and let them make the decision whether it is useful. You should always err on the side of full disclosure so that your lawyer knows all the relevant facts and can prepare your case accordingly. You as a client should also timely provide your lawyer with any information they request to enable your lawyer to meet deadlines imposed by the courts.
Working with your lawyer should not be just an added hassle to deal with in the pursuit of your case. Keeping the lines of communication open will help ensure that you have a successful and fruitful working relationship.
Posted by liz at March 15, 2010 7:55 AM CDT
3/5/10
In Memoriam: Howard Twiggs 1932-2010
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NCAJ President David Pishko announced the very sad news of the passing of Howard Twiggs yesterday, March 4, 2010. NCAJ members are expressing their love and gratitude for the life of this great trial lawyer and advocate who spent a lifetime fighting for the civil rights of all people.
It is my sad duty to report to you that Howard Twiggs, a President Emeritus of the North Carolina Advocates for Justice, died this morning. Howard was our eighth President and a past President of the Association of Trial Lawyers of America. He was a giant of the plaintiffs' bar and a constant reliable source of sage advice and inspirational leadership to our organization. He will be greatly missed. More details will follow.
Regards,
David Pishko
NCAJ President
Read what NCAJ members are saying about Howard's life and legacy.
To read Howard's full obituary, click here.
Howard Twiggs' family will receive friends at his home at 817 Blenheim Road, Raleigh, North Carolina on Friday, March 5th from 6:00 pm until 8:00 pm, and on Sunday, March 7th from 3:00 pm until 6:00 pm. A memorial service will be held on Monday, March 8th at 3:00 pm at St. Michaels Episcopal Church, 1520 Canterbury Road, Raleigh, North Carolina, 27608. Following the service a celebration of Howard's life will be held at 4:30 pm at the Cardinal Club, 150 Fayetteville Street, 28th floor, Raleigh, North Carolina. Memorial gifts may be made to The Pound Civil Justice Institute (Howard Twiggs Memorial Fund), 777 Sixth Street, N.W., Washington DC 20007; to the Capitol YMCA in Raleigh, or to the Wake County SPCA.
Posted by liz at March 5, 2010 10:24 AM CST
