Common Questions From Accident Victims in Tennessee
The victims of serious injuries and accidents are often left with a lot of questions. In our FAQ, you can get the answers to some of the most common questions our Nashville injury attorneys hear, as well as important information about your rights and legal options if you’ve been hurt in Tennessee.
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How much will it cost to hire an injury attorney?
There are several ways attorneys in Tennessee can bill for their time. Some lawyers charge by the hour, while others will quote a fixed fee for their services. However, injury attorneys will usually work on a contingency basis, a fee arrangement that allows personal injury victims to bring a lawsuit without having to pay for costs up front.
Factors That Determine How Much an Injury Attorney May Charge
Most injury victims do not have the funds to pay an hourly attorney or finance the cost of a lawsuit. In a contingency arrangement, the attorney will only collect his fee if the client gets a settlement or is awarded damages. If the case is successful, the lawyer will receive a percentage of the client’s recovery, giving the attorney an incentive to secure as much as possible for the client.
The amount an injury attorney may charge in a contingency fee arrangement will depend on:
- Contingency percentages. The percentage an attorney may charge in contingency fees varies by state. In Tennessee, contingency fees are capped at one third (33 1/3%) of the total recovery. When a lawyer is retained, he and the client will agree on the percentage before representation and case work begins.
- Filing and court costs. The attorney’s fee is only one of several costs that may be deducted from the settlement. The filing of a lawsuit can involve filing fees, serving summonses and subpoenas, hiring court reporters for depositions, mailing and copying, and other court costs. If the attorney pays for these costs up front, he must be reimbursed for them after the case is won.
- Expenses and fees. Attorneys will need to be reimbursed for any expenses they assumed on behalf of the client to investigate the case, such as obtaining medical records or hiring expert witnesses. Preparing a case for litigation may further increase expenses, making the case more costly if it proceeds to trial.
If your injury has caused significant losses and has affected your ability to earn a living, it may be worth the cost to hire a lawyer. The injury attorneys at GriffithLaw can tell you whether or not you will need an attorney for your claim at no cost to you—and if you choose to hire us, we will not collect any payment unless we are able to recover for you. Simply fill out the short contact form on this page or request a free copy of our book, The 10 Worst Mistakes You Can Make With Your Tennessee Injury Case, to learn more.
How can I prove that a driver caused my motorcycle crash?
Motorcycle accidents where the driver walks away without injury can be devastating for a rider. Without the protection of airbags and steel roll cages, a sudden collision can severely injure a motorcyclist and cause months of expensive and painful recovery. In order to hold the driver accountable for his losses, a motorcyclist will have to provide concrete proof of the driver’s negligence.
Your Attorney Can Connect a Driver’s Behavior to the Motorcycle Crash
In addition to collecting and preserving physical evidence after a motorcycle crash, you can help your crash case by detailing the other driver’s actions to your attorney. As you recover from your injuries, your legal team can examine statements made by the driver and witnesses, as well as look for other ways to prove that the driver was at fault.
For instance, an attorney can gather evidence against a driver who was:
- Speeding. Speeding is illegal because it reduces a driver’s reaction times and lengthens the stopping distance needed to safely avoid a collision. Traveling at high speeds also makes it harder to keep control of a vehicle and can be the reason a driver veers into another lane. It is worth checking speed cameras or notations in the police report for evidence that the driver was speeding.
- Drunk or impaired. A driver who operates a vehicle while under the influence of drugs or alcohol may not only be liable for civil damages, but he or she can be charged with criminal activity as well. Your attorney can investigate any illegal activity on the part of the driver, including a history of drunk driving or blood alcohol measurements taken at the scene.
- Driving aggressively. If a driver ran you off the road, was honking at you, or was following you too closely before the accident, there is a good chance that other drivers on the scene noticed this behavior. Witness statements can be taken to confirm that an aggressive driver was disregarding traffic laws, while surveillance cameras may have caught the driver’s actions on video.
- Driving while distracted. Drivers may be distracted by cellphones, radios, GPS devices, food and drinks, or just by talking to someone else in the vehicle. Depending on the type of distraction, an attorney can request cellphone records, passenger testimony, and witness accounts of the driver’s actions immediately before the crash.
- Negligent. Many drivers fully admit their mistakes at the scene of the crash, but are suddenly quiet when it comes to paying for the costs of the accident. What the driver said at the scene can be used in your case, such as the driver claiming he “didn’t see you,” “wasn’t paying attention,” or even that it was “not your fault.” What many drivers don’t realize is that a failure to “see” a motorcyclist is not a valid defense in an accident case, since drivers should be on the lookout for all types of vehicles.
Several Parties May Share Fault for a Motorcycle Crash
It is worth noting that it is not just the driver who can be liable for an accident. Your attorney should investigate all possible causes, including the condition of your bike, condition of your safety gear, and even the road you were traveling on to see if any other party made your injuries worse.
For example, if your helmet is cracked and you suffered a significant head injury, you could have a claim against the manufacturer. If your bike was recently repaired, the parts used or the mechanic’s work can be called into question. Finally, the location of the accident should be inspected for any potholes, debris, maintenance problems, missing guardrails, uneven grading, or other features that could have played a part in the crash.
If you were partially to blame for the crash, you can still recover compensation for your injuries. Tennessee’s modified comparative negligence system allows bikers to be up to 50% liable for their own injuries in an accident case, although the damages they receive are reduced by the percentage of fault. Our motorcycle accident attorneys can investigate the details of your accident and get you the maximum compensation you are owed under the law. Fill out our online contact form today to learn more, or request a free copy of our book, The 10 Worst Mistakes You Can Make With Your Tennessee Injury Case.
Can I change lawyers in the middle of my personal injury case?
If you did not hire the right lawyer for your injury case, you are fully within your rights to look for new representation. The amount you will receive in your case—or whether you win or lose—depends significantly on the actions and competence of your attorney. That said, you should carefully consider the reasons you are unhappy with your lawyer before making the change to a different one.
Reasons to Consider Changing Lawyers in a Personal Injury Case
No matter which lawyer you choose, he or she will always be bound by the facts in your case and the laws of the state. If your case is taking longer than expected or your initial settlement offer is lower than expected, this is not necessarily your attorney’s fault. However, your attorney’s actions toward you (or lack of them) are a valid reason for you to change lawyers in the middle of your case.
A good attorney will:
- Make you a priority. Lawyers often work on multiple cases at a time, but that is not a good reason to treat your case as if it is not important. A lawyer who lets phone calls and emails go unreturned or frequently cancels appointments is not invested in your case. If your lawyer forgets your name, the details of your case, or the last action he took to serve you, it may be time to seek other representation.
- Answer all of your questions. With so much riding on the outcome of their case, few clients are content to let everything happen “behind the scenes.” Your attorney should answer all of your questions to your satisfaction, including explaining why he or she is taking certain actions to resolve the case.
- Be qualified to handle your case. You may really like the attorney who drafted your will, but that doesn’t mean he is qualified to handle your accident case. If your attorney has not handled your kind of case before, he or she should be willing to refer you to someone with more experience in that area.
- Respect your decisions. Your attorney is the legal advisor, but you have the final say on what advice you take. Your attorney should listen to all of your requests, including whether or not to accept a settlement.
- Keep you updated. Some cases may take longer than others, but it is your attorney’s duty to keep you advised of the status of the case. Make it clear that you want regular progress updates in addition to an alert whenever an important change is made, and consider it a red flag if these notices taper off.
- Act responsibly and ethically. An attorney who engages in unethical behavior, such as encouraging you to lie about the facts of your case or destroy evidence, should be exchanged for another representative immediately.
How to Handle the Change to a New Attorney
It is best to sign another attorney for your case before notifying the former lawyer that you are leaving. This is not only because your new attorney will handle most aspects of the switch for you, but also because he or she can make sure your case is progressing during the transition. It will also save you the headache of being turned down by attorneys who do not want to take cases that another lawyer has been working on.
When you have chosen your new attorney, making the change involves a few steps:
- Determining the cost of switching. Since most personal injury lawyers are paid from the settlement you receive, your first attorney will not get anything if you switch. Your new attorney should examine your contract with the former attorney to see if there are any fees you will have to pay when you terminate the agreement.
- Signing a retainer agreement. Just as you did with your former attorney, you will have to sign a form to give your new lawyer permission to represent you.
- Sending a stop work letter. Your new attorney must send a "stop work" letter to your former attorney, which requests that he stop working on your case and forward the case file to your new attorney.
- Signing a consent form. Your new attorney will prepare a form for you to sign, called a Consent to Change Attorney, to notify the court and all parties in your case that you have switched attorneys. If your case is already undergoing court proceedings, your attorney will also need to provide notice of withdrawal or substitution of counsel.
If you are unsatisfied with your current attorney, our Tennessee personal injury lawyers can advise you on whether making a switch is the right thing to do for your case. Contact us today for a no-obligation consultation, or request a free copy of our book, The 10 Worst Mistakes You Can Make With Your Tennessee Injury Case.
Who is at fault if a senior is struck while crossing the street?
Cities pose many dangers for pedestrians, particularly for older citizens. According to a recent study reported by the American Association of Retired Persons (AARP), car accidents caused 47,025 pedestrian deaths nationwide between 2003 and 2012—and although people over age 65 years account for only 13 percent of the population, they make up 21 percent of pedestrian deaths nationwide.
Why Are Older People More at Risk of Pedestrian Injuries?
By far, the biggest cause of pedestrian accidents for people of all ages is inattentive drivers. Careless driving can include activities such as disregarding stop lines, turning in front of pedestrians who have the right of way, and running red lights. Accident rates increase even further if a driver is distracted by a cellphone or is driving under the influence of drugs or alcohol. According to the Centers for Disease Control and Prevention, 48% of crashes that resulted in pedestrian deaths in 2015 involved alcohol use by the driver or the pedestrian.
In addition to all of the usual reasons for Tennessee pedestrian accidents, senior citizens face specific difficulties that place them more at risk of being struck by cars, including:
- Roadway design. Cities are not always designed for the benefit of people traveling on foot. While streets and thoroughfares account for the needs of drivers and cars, pedestrian safety is often treated as an afterthought. Roadway designers and local municipalities may be held liable if the pedestrian crossing was obstructed, if the conditions did not have safety measures such as islands and raised medians, or if there was not sufficient lighting to allow drivers to see the pedestrian for the full crossing.
- Short signals. People undergo many changes in their bodies as they age, and one of these is an inability to move as quickly as they did in their youth. Not only does it take longer for many senior citizens to cross the street, lost mobility makes them less likely to dodge an oncoming car or get out of the way of a speeding bicyclist at the last minute. Older people are also more likely to suffer vision problems and have difficulty hearing, placing them at risk of entering traffic when it is not safe.
- Jaywalking. Although pedestrians are supposed to cross at designated crosswalks, many cross mid-block or at an angle. Some elderly people even choose to jaywalk in order to avoid busy or dangerous intersections, or to give cars more time to see them. Elderly people may be seen to be at fault for jaywalking, even if their crossing point was a conscious choice to help avoid an accident.
- Urban roads. The majority of pedestrian fatalities occur in urban areas and involve vehicles traveling between 35 and 40 mph. Longer and wider highways and faster-moving traffic make it nearly impossible for older people to cross the road before the lights begin to change—and the cars on these roads are likely to be going so quickly that they cannot stop in time to avoid a crash.
- Crash injuries. While many pedestrians who are hit by cars traveling under 20 mph will survive the accident, even the effects of a non-fatal crash can prove life-threatening for senior victims. An elderly person who suffers fractured ribs may need intensive care or spend days attached to a ventilator, and seniors may never fully recover from a broken hip or head injury.
Who Is Responsible for a Pedestrian Crash With a Senior Citizen in Tennessee?
In many cases, both a driver and a pedestrian will share some portion of fault for an accident. Under Tennessee’s modified comparative negligence laws, a victim may be determined to be up to 50 percent liable for a crash and still receive damages from the other party. However, the amount a victim can receive will be reduced by the percentage of liability for the accident. For example, if you are awarded $100,000 but are 30 percent at fault, you will only receive $70,000 in damages.
If you have been injured in a pedestrian accident, we can help you get the payment you deserve for your injuries, lost income, property damage, and pain and suffering. Fill out the quick contact form on this page to have the attorneys at GriffithLaw explain your rights in your free case evaluation, or order a free copy of our book, The 10 Worst Mistakes You Can Make With Your Tennessee Injury Case.
What are the biggest considerations that can affect my pedestrian accident claim?
People who are struck by cars while on foot are likely to suffer catastrophic injuries, and these victims are not always fairly compensated for their losses. The details and circumstances off the accident play a large part in whether the pedestrian will receive fair payment from an insurer or an at-fault driver.
Factors That Affect Compensation for a Pedestrian Accident
Pedestrian accidents have all of the same considerations as other injury cases, but they also involve specialized factors such as pedestrian laws and an additional duty of care on the part of the driver. As a general rule, the factors that are most likely to influence a pedestrian’s car accident settlement include:
- The type and extent of injuries. Pedestrians do not enjoy the same crash protection as drivers, and they rarely walk away from a collision. The greater the injuries suffered in the accident, the more potential compensation the pedestrian may be owed.
- The amount of lost income. The amount of time that a victim was unable to work due to the injury or recovery should be reimbursed.
- The extent of your medical treatment. If the accident caused you to undergo surgery, suffer painful physical rehabilitation, and require visits to specialists, your injuries may carry a higher value to insurers and injury courts.
- Details of the crash. The majority of pedestrian accidents involve vehicles, including cars, trucks, and motorcycles. The type of vehicle that struck you, as well as the speed at which the vehicle was traveling and the condition of the driver, will likely affect the outcome of the case.
- Your own auto insurance coverage. The type and amount of insurance that you were carrying at the time of the crash will likely affect your case (especially if you are having trouble collecting payment from an insurer).
- Liability for the accident. Tennessee accident fault laws prevent victims from collecting compensation if they are mostly to blame for an accident. In a car-pedestrian crash, pedestrians are rarely assigned the majority of fault for an accident, but they can still see a reduction in damages based on their portion of fault.
- Criminal charges for the driver. If the driver was speeding, drinking while driving, or otherwise breaking the law at the time of the crash, the pedestrian’s case is much stronger. A charge issued to the driver is related to fault and can make the driver’s portion of blame rise significantly (especially if the driver is convicted).
- Long-term effects of the accident. Pedestrians who suffer permanent complications of the accident, such as paralysis, disfigurement, disability, inability to return to pre-injury lifestyle, inability to earn a living, inability to live independently, or loss of enjoyment of life can be owed a significant amount in the form of pain and suffering damages.
- Death of the victim. If a person loses his or her life due to a pedestrian accident, the family has the right to file a wrongful death action instead of a personal injury claim. Family members can collect payment for the loved one’s lost future income, funeral and burial, medical bills, and other losses the victim suffered between the time of injury and death.
Why Pedestrians Should Seek Legal Advice After a Crash
The first step for many pedestrians injured by vehicles is to file a claim with the driver's insurance company. It is an insurance adjuster’s job to pay out as little as possible in each claim, and they have many tactics they use to reduce the amount given to victims. Firstly, they often gather as much information as they can that could be used to reduce the payout, such as taking a recorded statement from a victim who has not fully recovered. Second, they may comb through the victim’s social media to find pictures or messages from the victim that can devalue the claim, such as a post to friends and family using the words “I’m fine.” Finally, they may offer an extremely low settlement to a severely injured victim, allowing the victim to trade fair compensation for a fast payment.
If you have been hurt in a pedestrian crash, the attorneys at GriffithLaw can get you the amount you deserve for your medical bills, lost income, and pain and suffering. Fill out the quick contact form on this page to have us explain your rights in your free case evaluation, or order a free copy of our book, The 10 Worst Mistakes You Can Make With Your Tennessee Injury Case.
How is my motorcycle crash claim different from other accident cases?
In Tennessee, the same laws apply to crash cases whether they involve motorcycles or passenger cars. However, there are a great many additional factors that must be considered in cases where a motorcycle rider has been injured, including who may be held liable and how much each party needs to prove to win compensation. If your attorney does not specifically handle motorcycle crash cases, he may overlook the importance of these differences, resulting in less compensation than you deserve.
Why Motorcycle Accidents Differ From Other Injury Cases
Motorcyclists are over ten times more likely to die in road accidents than drivers of motor vehicles. Nearly 100,000 people are injured every year in motorcycle accidents in the United States, many of whom are often under-compensated for their crash costs due to:
- Severity of injuries. The cost of injuries in motorcycle accident cases is often much higher than in accidents involving two vehicles. Without the safety of steel frames, seatbelts, airbags, and other safety features, motorcyclists are much more vulnerable to injury. It is not uncommon for a motorcyclist to suffer broken bones, traumatic head injury, or loss of a limb in a crash where the driver walks away with minor bumps and bruises.
- Road designs and hazards. The design and condition of a road is more important for a biker than it is for a driver. Ice and debris on the road can be perilous for motorcyclists, while blind corners and uneven terrain make the odds of a motorcycle accident much more likely. Many bikers are unaware that road designers and municipalities can be held liable for causing their accidents.
- Stigma against riders. Many people wrongly perceive motorcyclists as risk-takers or unsafe riders. Unfortunately, this may cause a judge or jury to see the biker as playing more of a role in causing the accident than he or she is responsible for, lowering the amount of compensation awarded.
- Fault considerations. Tennessee’s fault system in injury cases is one of modified comparative negligence, meaning a victim can only recover damages if he is 49% or less to blame for the accident. Motorcyclists are often too injured to recover evidence at the scene, record the names of witnesses, or give police statements at the time of the crash, sacrificing vital evidence that can be used to prove their innocence.
- Insurance company tactics. As motorcycle crashes tend to have higher injury costs, insurance companies are more likely to deny and underpay claims made by motorcyclists. In addition, adjusters are well aware of the public’s bias against motorcycle riders, making it easier for them to pressure victims into accepting less than their claims are worth.
- Manufacturing and repair defects. Many motorcycle accidents are a result of a problem with the overall design of the bike or the quality of its components. If the motorcycle was in some way defective, the rider can pursue a case against the person responsible (such as the maker of the bike, distributor of the defective part, or someone who performed inadequate repairs). Unfortunately, many riders repair their motorcycles as quickly as possible after a crash, destroying vital evidence that could be worth thousands in an injury case.
- Permanent effects. Motorcycle accidents will often result in lifelong paralysis or other permanent consequences for the rider. This may make it impossible for him or her to earn a living, while at the same time causing a sharp increase in medical and living expenses. If the accident is fatal, survivors will have to shoulder the burden of funeral expenses, unpaid medical bills, and other end-of-life costs.
If you have been injured in a motorcycle accident, we can help you get proper compensation for your injury costs, loss of income, property damage, and pain and suffering. Fill out the quick contact form on this page to have the attorneys at GriffithLaw explain your rights in your free case evaluation, or order a free copy of our book, The 10 Worst Mistakes You Can Make With Your Tennessee Injury Case.
What do I need to prove to win my car accident case?
No matter how straightforward the details of your case may seem, you will still have to make a clear case of negligence in order to get compensation after a crash. It all comes down to what you can prove and what you use to prove it, making the quality of your evidence vital to winning your case.
How to Prove Negligence in an Injury Claim
Most state laws provide a framework of what must be proved in order to recover compensation in an injury case. In order to prevail in a Tennessee car accident claim, you will have to prove the following:
- You were owed a duty of care. The other party who is named in your lawsuit must have owed you consideration for your safety, called a “duty of care.” A driver who struck you owes you a duty of care, since all road users have a duty to obey local traffic ordinances and drive as safely as possible. If you are suing someone other than a driver, you must establish that he or she owed you a duty of care.
- The negligent party breached the duty of care. Once you have shown that someone owed you a degree of safety, you must show that his or her actions were in violation of that duty. This proof hinges on showing that a reasonable person would not have acted as the negligent party did. Common breaches of care can include distracted driving, speeding, drunk driving, tailgating, or road rage.
- The breach of care resulted in your injury. It is not enough to show that a driver was negligent, or even that a driver’s negligence caused an accident. You must also prove that the negligent party’s actions directly caused your injuries and property losses. This may be difficult for a victim who suffered aggravation to a previous injury, as they will have to show that the accident was the primary cause of the injury becoming worse.
- The breach of care resulted in financial losses. In order to recover the costs of an accident, you must prove that all of the losses you are claiming are directly related to the crash. This can include property damage (such as the cost for repairs to a vehicle), costs related to your injuries (such as medical bills and rehabilitation), and income losses (including the wages you were unable to earn while you were out of work).
- You were less than 50% to blame for the accident. Tennessee injury cases rely on a system of modified comparative negligence. Simply put, this means that a victim can recover damages even if he or she shared some of the fault for the accident; however, damages will be reduced by each party’s percentage of blame. In addition, state law requires that accident victims can only collect damages if they are less than 50% at fault for the accident. If you are more than 50% to blame, you will not be eligible to receive any payment in your injury claim.
Evidence That Can Help You Win Your Car Accident Case
All of the evidence you gather should have one goal: proving one (or more) of the factors above. Pictures and videos of the accident scene, vehicle damage, and road conditions are an effective way to demonstrate the extent of injury and financial loss. Physical evidence, such as the clothes you were wearing at the time of the crash, can show the extent of physical and emotional trauma. Police reports are inadmissible as evidence in the state of Tennessee. On the other hand, the reports can be used to track down witnesses, recreate the scene, and serve as leads for gathering other forms of evidence (such as a police officer’s or eyewitness’s testimony). Finally, statements from repair shops and medical providers are necessary to provide an accurate estimate of your accident costs.
If you have been injured in a car accident, we can help you collect evidence of your injury costs, loss of income, property damage, and pain and suffering. Fill out the quick contact form on this page to have the attorneys at GriffithLaw explain your rights in your free case evaluation, or order a free copy of our book, The 10 Worst Mistakes You Can Make With Your Tennessee Injury Case.
Are there laws protecting pedestrian on curbs and crosswalks in Tennessee?
Yes, and for good reason. According to the National Highway Traffic Safety Association (NHTSA), about 5,000 pedestrians are killed as a result of collisions with motor vehicles every year, and nearly ten times that number suffer injuries in these kinds of accidents. Tennessee has an unfortunately high rate of pedestrian accidents, with drivers overwhelmingly at fault for causing injuries. But what people may not realize is that there are also laws governing a pedestrian’s actions near roadways, and failure to comply with these laws can make it more difficult to get injury compensation.
Pedestrian Laws for Safe Crossing and Road Use in Tennessee
Tennessee law states that pedestrians have the right of way at all intersections and driveways. However, pedestrians must exercise reasonable care for their own safety and the safety of others while crossing the road or traveling in traffic lanes. Failure to follow safety laws can result in civil infractions against the pedestrian, and can also affect the amount that he or she is awarded an injury case.
For example, injury cases may be more complex if they involve:
- Walking along the roadside. Under Tennessee law, it is not legal for a pedestrian to walk or run in the road if an adjacent sidewalk has been provided. If there is no sidewalk, pedestrians are required to walk facing the direction of traffic and as far onto the shoulder of the road as possible. In some cases, pedestrians are forced into the road because the sidewalk is under construction, a store has blocked the path with signage, or a lack of maintenance has made the sidewalk unusable. An attorney should examine the facts of your case to determine if one of these parties may share legal responsibility for the accident.
- Pedestrian signals. Tennessee law requires that all pedestrians who have a Walk signal proceed across the roadway responsibly, and stay on the curb when the Don't Walk signal is present. No pedestrian may start to cross the roadway if the Don't Walk signal has started flashing.
- Crossing outside of an intersection. It is not illegal for a pedestrian to cross a roadway outside of a designated intersection. However, pedestrians crossing mid-block are required to yield the right-of-way to vehicles traveling on the roadway. Pedestrians are forbidden from leaving a traffic island or curb into the path of an oncoming vehicle unless the vehicle has enough distance to stop safely.
- Crossing in front of a vehicle. Pedestrians must always look both ways before starting across the roadway. They are also required to cross at least ten feet in front of a vehicle that is in the process of dropping off passengers (such as school buses, city buses, and even passenger cars). Pedestrians who do not follow this law can be charged with a traffic offense and be ordered to pay fines.
- Soliciting. State law prohibits any soliciting on public streets, corners, alleys, and other traffic lanes in Tennessee. If you were injured while hitchhiking, asking for financial help, work opportunities, or other contributions while standing on the roadway, you may be found to share fault for the crash.
If a jury believes that a pedestrian’s actions contributed to his injuries, the pedestrian’s damages may be lowered in proportion to the amount of fault. If the pedestrian is found to be more than 50% at fault, he or she may not recover any damages at all. That is why it is vital for pedestrians who have been struck by cars to speak with an accident attorney who is well-versed in traffic law and can investigate the details of your claim.
If you have questions after being injured in an accident, the attorneys at GriffithLaw will listen to your story and explain your rights in your free case evaluation. Fill out the quick contact form on this page to get started, or order a free copy of our book, The 10 Worst Mistakes You Can Make With Your Tennessee Injury Case.
How is Wrongful Death Money Distributed Among Family Members?
One of the questions many family members want to know when a loved one is killed by someone else’s carelessness is…. If there is a recovery, how do the various family members split the proceeds?
This is a great question and one that is often litigated. Fortunately, we have a body of law in Tennessee that gives us direction.
Tennessee’s Wrongful Death Law is a creature of statute. This means that the rights of a deceased person are governed not by prior rulings of courts per se (i.e. “common law”) but are determined by the legislature. Unfortunately, the legislature does not foresee every possible occurrence, so we look first to the written law, and then to the cases interpreting that law.
WHO HAS THE RIGHT TO SUE?
One of the first things to understand is that there are 2 categories, or classes, of people in wrongful death cases. First, you must identify the proper parties who have the right to bring the lawsuit and control the litigation. Secondly, you must identify all people who have the right to share in the proceeds of that lawsuit. These are not one in the same most of the time.
For example, suppose there is a man who is married, divorced, has 3 adult children, then gets remarried and is living with his second wife at the time he is killed in a wreck caused by a dump truck. Who gets the proceeds from any recovery by the dump truck’s insurance carrier? Who has the right to sue? Is it the children… or the current spouse?
Tennessee law is clear on the “priority” of who can properly bring the lawsuit. That right clearly rests with the surviving spouse. If the surviving spouse does not act, or waives her right to sue, then any of the 3 children can bring the lawsuit. What if the children file the lawsuit right away and the wife brings her lawsuit on behalf of her husband 10 months later, who controls the lawsuit? The wife has the statutory right of control to bring the lawsuit, and if properly filed, will take priority over the children’s claims, which will be dismissed. The surviving spouse has the right to either litigate the claim or to settle in a manner that is binding on the children. Their consent is not material to the outcome of any settlement or decision to proceed to trial. The children also do not have the privilege to employ separate counsel to protect their interest in receiving a share of the wrongful death proceeds.
The children do have a right to “consortium damages” from the wrongful death proceeds. However, this claim is not considered a “separate claim” or an independent cause of action in the case. The children’s claims are merely considered one component of the value of the decedent’s life.
HOW ARE THE PROCEEDS DIVIDED?
If proceeds are obtained in settlement or judgment in a wrongful death claim, how are they divided? Again, the law is clear … Proceeds of a wrongful death action are distributed according to the laws of intestate succession. Foster v. Jeffers, 813 S.W.2d 755(1963) These are the same laws that govern the distribution of the assets of a person’s estate if there is no will. If there is a spouse and no children, the surviving spouse will get 100% of the proceeds. If there is a surviving spouse and 1 child, the proceeds will be split equally. If there are 2 children and a surviving spouse, the proceeds will be divided 1/3 each. The surviving spouse will never receive less than a 1/3 share of the proceeds, with the remainder of funds being divided amongst the number of children heirs.
There is no need for every wrongful death beneficiary to bring a lawsuit or intervene in a lawsuit filed by another beneficiary in order to preserve his or her right to receive a portion of the wrongful death proceeds. Shedd v. Community Health Systems, Inc., (citation omitted).
There are some exceptions to this general rule. For example, if the surviving spouse’s actions played a role in the death of the decedent, he/she may not be able to recover (i.e. murder, drinking and driving contributed to a spouse’s death). Nelson v. Myres, (citation omitted). Prenuptial and ante/post-nuptial agreements may also inadvertently waive the right to share in any recovery proceeds of a wrongful death claim. If the surviving spouse is behind on child support payments, he may not recover until he has brought those payments current, with interest. If one spouse has abandoned the other spouse while still “married” then that person may not share in the proceeds. T.C.A. 20-5-106(c).
These cases are intensely fact specific and there is not always a “one size fits all” approach. If you have lost a loved one through the carelessness of someone else, you may wish to contact one of our firm’s award-winning lawyers, who are constantly battling these exact types of cases on a daily basis, and sit down with us to discuss the facts of your case, and show you exactly what you need to do to protect yourself.
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Why are teen drivers more likely to cause car crashes than other age groups?
All parents want to keep children safe in car accidents, even if the child is the one who is driving. Unfortunately, car accidents are the leading cause of death for teenagers in the U.S., and teenage drivers have some of the highest accident ratings of any age group.
Teen Driver Behaviors That Put All Road Users at Risk
According to the Centers for Disease Control and Prevention (CDC), 2,333 teenagers in the United States between the ages of 16 and 19 died in 2015, and 221,313 were treated in emergency departments for car accident injuries the previous year. On average, six teenagers die every day as a result of crashes, whether they are behind the wheel or riding as a passenger.
Research from the CDC points to a few key reasons teen drivers are likely to be involved in car accidents:
- Lack of experience. Teen drivers have triple the fatal crash risk of older drivers, in part because they do not have the skills to recognize and avoid road hazards. Teens often spot hazardous situations (such as wet roads or cars stopped on the shoulder) later than more experienced drivers, and they are also more likely to underestimate the dangers of a potentially harmful situation and make a critical error that leads to a crash. The risk of an accident is highest during the first few months after the teen has gotten his or her license, and decreases as the driver gains experience on the road.
- Distractions. Drivers under age 20 have the highest rates of distraction-related fatalities in the nation, especially those who text and use cellphones while driving. In 2015, the CDC’s Youth Risk Behavior Surveillance System (YRBSS) found that 42% of high school students who had driven in the past 30 days admitted to sending a text or email while driving. Students who admitted to frequent texting were also more likely to engage in other risky driving behaviors, such as drinking.
- Driving with friends. Researchers have discovered a link between the number of teen passengers and increased crash risk when an unsupervised teenager is driving. Fortunately, Tennessee’s Graduated Driver License (GDL) Program has rules in place to prevent teenagers who are still learning from carrying too many passengers. Those driving with a learner’s permit may only drive with a licensed driver over 21 in the front seat, and those with an intermediate license (Level II) may only have one passenger in the car.
- Speeding. Teens are likelier to engage in activities that make it difficult to stop suddenly, including speeding and following too closely behind another vehicle. Risk-taking behavior increases with male teen drivers, especially if there are male passengers.
- Weekend and night driving. Teenagers whose licenses no longer have night-driving restrictions are at significant risk of suffering fatal accidents. In 2014, half of all teenage deaths from car crashes took place between the hours of 3 p.m. and midnight. Weekends were also particularly deadly, with 53% of fatalities occurring on Friday, Saturday, or Sunday.
- Drinking and drug use. Over a million high school teens drink alcohol and get behind the wheel every year. One survey from 2015 found that 20% of teenagers admitted to riding with a driver in the previous month who had been drinking alcohol. In 2014, 17% of drivers between the ages of 16 and 19 who were involved in fatal crashes had a BAC of .08% or higher.
- Lax seat belt use. Teenagers have some of the lowest rates of seat belt use when compared with other age groups. A 2015 survey discovered that only 61% of high school students always wear seat belts when riding with another person. Teen drivers with involved parents were twice as likely to wear seat belts regularly.
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