Rick Woods, Attorney at Law - Northwest Arkansas Legal Services

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What to do after an accident

1.    Do not discuss your collision with anyone except your attorney and his staff. If you are contacted by anyone, you should immediately notify them that you are being represented by an attorney and request their name and telephone number. Give them your attorney's name and telephone number and ask them to contact him directly.

2.      Your own insurance company: It is important that you comply with the terms of your insurance policy so that you will be entitled to all benefits. Advise your agent or broker that your attorney has information regarding the collision. If they insist upon taking a report or statement from you, have them call attorney before you give the written or oral statement.
3.    If your vehicle was damaged in this collision, and you have any concerns regarding your property damage claim, please contact your attorney. If your vehicle is in storage, you must take steps to get your vehicle to a free storage area. If you are in a rental, be advised you have a duty to keep your rental expenses at a minimum. The insurance company is only responsible for those charges they deem to be reasonable and necessary. Should you decide to add insurance to the rental contract, be advised that this may not be reimbursable, as your own automobile insurance policy should cover you while you are in the rental vehicle. If you do not carry full coverage on your own vehicle, however, please let me know. Keep in mind that excessive and/or optional rental charges are not reimbursable. You can speak with the insurance adjuster regarding the property damage, but keep in mind you should not discuss any other aspect of your case with them.
4.    Correspondence from anyone other than your attorney. Mail all related correspondence that you receive to your attorney.
5.    Lost Income.  If you are unable to work at any time during the recovery period, you must keep your employer advised. It is also important for you to obtain disability certificates from the treating physician/facility and to provide a copy of the off-work disability slips both to your employer and your attorney.
6.    Follow your doctor’s advice: Only by following your doctor’s advice can you hope to hasten your recovery. You should advise your doctor of all medical complaints, including minor ones, so your medical condition can be property documented and evaluated.
7.    Keep a journal: You should keep a diary or journal that you update daily of what you are experiencing physically and mentally.  You should note anything that stands out in your mind, but at least try to note: Any conversations with or statements by witnesses or other parties to the accident;  Conversations with adjusters if you have already spoken to one;  How you felt immediately after the accident;   The onset of your injuries, location and the type pain experienced;   Daily record pain and location and things that make it worse, better if applicable and things you could not do because of your injuries.
8.    Medical Bills. It is important for you to understand that all outstanding medical bills are ultimately your responsibility. If you have health insurance then you should be sure to instruct all physicians/facilities to bill your health insurance carrier directly. It is imperative that you utilize only those physicians/facilities listed and approved by your health insurance carrier. If you have any questions or concerns in this regard, contact your health insurance carrier or your attorney.
9.    If you do not have medical insurance then you should discuss the possibility of payment arrangements with the provider of services immediately. If the physician/facility will accept payment arrangements, then you should make arrangements that fit your budget. If the physician/facility will not accept payments, then you should discuss the possibility of a lien with that physician/facility.
10.    Expenses: Keep a record of all expenses related to your claim, including bills and receipts for doctors, hospitals, ambulance costs, medication and other miscellaneous expenses relating to the collision. You can either mail in or drop off all proof of expenses.
11.    Keeping your attorney up to date: Inform your attorney of any of the following: A change in address or telephone number; A change in place of employment; The date of discharge by your physician; Names of all treating physicians/facilities; Anything which may occur to you after our interview which you feel would be important to your claim or affect the claim in any way.

Settling around worker's compensation carrier

I am involved in a case where we are attempting to settle our case with the manufacturer of a defective product and the company that rented the device to my client's employer.  Worker's compensation carrier has quite a large lien.  We have made a part of our settlement that we be allowed to settle around the carrier and that respondents to our claim be responsible for any claimed subrogation of the carrier.  I intend to file a petition to approve settlement and settle around the carrier in circuit court.  The petition will be an original filing as there is no current ongoing lawsuit.

AR. Code Ann. §11-9-410 (a) allows an injured worker to pursue a third party claim or lawsuit, but the comp carrier "shall be entitled to reasonable notice and opportunity to join in the action."  Subsection (b) allows for the employee (compensation beneficiary) to pursue a claim for benefits over and above what the carrier has paid out  Here is where it gets interesting.   under subsection (c), the settlement of a claim brought under (a) compensation beneficiaries claim or (b) carrier's claim "must have the approval of the court or of the commission, except that the distribution of that portion of the settlement which represents the compensation payable under this chapter must have the approval of the commission."

If a settlement is reached, then the matter may not be settled until three days written notice to all parties with an interest in the claim of the intent to settle.

HOW TO SETTLE THE CLAIM AROUND THE CARRIER.  It certainly appears that if you follow the statute and you recite in your release that the claim is setting non-compensation claims and that a subsection (b) claim is preserved then you can settle take the money and not have to pay the carrier.  The burden then shifts to the carrier to pursue its benefits.  The only support I could find to this proposition after the 1993 amendments to the worker's compensation act, is the case of Smith v. Chemical Leaman Tank Lines, Inc. 285 F.3d 750 (8th Cir. 2002).  Smith recites that the Comp act was amended in 1993 "because courts had 'continually broadenend the scope and eroded the purpose of the [act].'"    The amendments were to appeal, annul and hold for naught all prior decisions on the [act].  The Smith court found no conflict between the 93 amendments strict construction requirements and the settle around doctrine so long as the carrier's rights were preserved.

Any circuit court decisions would be appreciated.

Focus group reveals bias

I recently took part in a focus group with Sach Oliver, of Bailey and Oliver of Bentonville, Arkansas for guidance on a case. Sach does a good job in putting together a focus group and is a great moderator. I recommend his services. For those of you who have a small case and the money is not justified, I reccomend David Ball on doin your own focus group.

At any rate, I was amazed at some of the juror biases. Some went so far as to case apursions at the victims daughter for putting her in a home to start with. I have not researched juror bias against the victims family, but it is worth looking into. Anyone familiar with a study or publication on this point, please share.

What it tells me is that if you have a claim with an elderly person against a nursing home be prepared to explain why the family had to put the victim in the home. I think special attention should be paid as to whether or not the family members, especially the victims children were involved with the victim's life prior to the abuse or neglect.