Month: January 2010

If you are killed as a result of someone’s negligence, what happens to your will?  The first thing you need to know is that if you die, and you have a will, an estate will be opened to administer your estate.  This means that your Will is filed with the Court in the county where you lived and died.  A person is appointed as an administrator.  The administrator collects your assets, accounts for those assets, protects for those assets, pays your debts due after you die, pays all taxes due, and then distributes the assets to the persons you identified in your will.

If you die as a result of someone else’s negligence, such as in a car wreck with a drunk driver, a highway accident with a semi tractor trailer, a motorcycle accident, a construction accident, you are electrocuted, or burned or in any type of automobile accident, and you have a will, the process is the same as described in the first paragraph.

However, a second estate may be opened as well.  This is called a wrongful death estate.  It is not really an estate at all.  Along time ago, if you died as a result of another person’s negligence, your there was no compensation (remember, compensation simply means “to make up for") for the harm caused to your family.  This meant that if you died and you were the sole bread winner in your house, your spouse and children would be on their own. Most families fell into poverty and worse.  Hoosiers saw a huge problem with this and passed the Indiana Wrongful death statutes.  The legislature knew that a deceased person could not bring the claim in their own name (deceased people cannot legally do anything, for obvious reasons), so they had to come up with an entity which could bring the claim.  They settled on what they called a "Wrongful Death Estate" or WDE.  This works well, but it is a little confusing.  It is confusing because the WDE does not change how the estate described in paragraph one works.  The funds which are paid in compensation for the wrongful death do not become part of the regular estate.  The wrongful death statutes describe how the funds generated by the WDE claim are distributed.  Usually the funds are for the surviving spouse and dependent children, to make up for the loss these folks endure as a result of the wrongful death.

At Young and Young, we have more than fifty five years of experience helping families who have to deal with the tragedy of losing a loved one.  We have read and used the Indiana Wrongful Death Statutes to help families survive the economic hardships caused by losing a loved one.  Please call us today.

If you are reading this because you need information about wrongful death, our family extends our sympathy for your loss.  We know firsthand the angst, sorrow, and numbing grief you are dealing with and we pray for your strength in the face of this tragedy.

The first things you need to take care of are the arrangements for funeral and burial.  It is always helpful to allow a family member or friend to accompany you to make these arrangements.  You are in grief, and it is almost impossible to concentrate in this state of mourning.  Having a friend or family member who is not as directly involved is always helpful.  The first three to four days will be a blur and our ceremonies and traditions help us cope with the loss.

In the days following the death, it is important to find the will and seek the advice of a probate lawyer to help administer the estate assets.  A Probate lawyer is a lawyer who specializes in handling wills and estates.  You should look for life insurance policies and make contact with the insurance companies so that you can fill out the “Proof of Loss” forms all insurance companies require.  Don’t forget to check with your health insurance company and credit card issuers, often times these entities will have small life insurance policies attached to them.  You car loan may also have a life insurance policy attached to it which will pay off the loan, the same goes for your mortgage, so check with each of these folks.

If the death was caused by the negligence of another person, it is called “Wrongful Death”.  It does not matter if the death was caused by a car wreck with a drunk driver, a semi tractor trailer in a highway accident, a motorcycle road accident, any kind of traffic accident, a construction accident, burns or electrocution. Indiana has three statutes dealing with the wrongful death of a loved one.  One statute deals with the death of an adult with dependents (spouse, child or financially dependent person), wrongful death of an adult without dependents, and wrongful death of a child (one who is under the age of 20, or 23 if the child is a full time student).  The statutes can be found at I.C. 34-23-1-1, I.C. 34-23-1-2, and I.C. 34-23-2-1.  We will go into the specifics of each statute in later blogs.

As we have stated in earlier blogs, an immediate and thorough investigation into the facts of the fatal accident should be conducted as soon as is practical.  A competent car accident attorney or accident lawyer will be able to handle the investigation for you, relieving you of that stress, so you can focus on your family.  At Young and Young, we have been asked to perform these services for hundreds of Hoosier families.  We have the resources and the experience to do what needs to be done to help you in this awful time.

You are in an accident.  It does not matter how the accident happened.  It could be that you were in a car wreck with a drunk driver.  It could be you fell in a construction accident.  You might have had a highway accident with a semi tractor trailer. You might have been in a road accident while riding your motorcycle.  It does not matter if it was a traffic accident or a slip and fall, or you were electrocuted with burns, you are injured.  Your injury might include a brain injury, or a back injury with spinal cord injury, which causes you to become paralyzed as either a paraplegic or a quadriplegic.  If you are hurt and it is someone else’s fault, you are going to need medical care and treatment.

Most doctors do excellent work. As a result the injured person recovers as best they can and gets back to life as best they can.  Every so often, however, the doctor treating the patient makes a medical error, also called malpractice.  Remember, malpractice does not mean the doctor meant to cause the harm.  It simply means the doctor was negligent in providing medical care.  Doctors are human, and they make medical mistakes.  If they do make a medical mistake, they must do what your mother taught you and what their mothers taught them, they must make up for the harm they caused.  They do this by having insurance.  Don’t worry about their rates going up.  Indiana passed medical malpractice tort reform back in the seventies.  The doctors are protected by the malpractice act which caps recoveries for the people they injure at 1.25 million dollars.  This might seem like a lot, but a child who suffers permanent injury is going spend 5 or 6 times that amount in medical care over their life time.  Instead of the person who caused the problem making up for the harm they cause, we as tax payers have to make up for the harm they cause through Medicare and Medicaid.

If your doctor makes a medical mistake while treating you for injuries caused by another person in an accident, the person who caused the original injuries is responsible for making up for the additional harm caused by the doctor.  The other driver does this through their insurance.  The injured person can also bring a claim against the doctor as well, asking the doctor to make up for the additional harm he caused.  The reason for the first rule I discussed (the person who caused the accident is responsible for all the harm that is caused by the accident) is to make sure that the injured person receives full and fair compensation.  The reason the injured person can also bring a claim against the doctor is because the driver that originally caused the harm may not have enough insurance to pay for the harm the doctor caused.  Do not worry about the injured person obtaining a double recovery.  This is not allowed under Indiana law.

Competent and careful accident lawyers and accident attorneys know the rules about how and when to bring a claim against the person who caused the accident and the doctor who made a medical mistake.  Young and Young, as injury lawyers for more than 55 years, are qualified to help you with your claim.  Call us today.

Man’s best friend can sometimes be unfriendly. With the popularity of television shows such as Cesar Milan’s “The Dog Whisperer,” who preaches rules boundaries and limitations for canine pets, proper dog training and behavior is near the top of the public agenda. Maintaining a dog in Indiana imposes on a dog owner the duty of reasonable care even when the dog owner is unaware of the dog’s vicious or dangerous tendencies. Indiana law requires dog owners to exercise reasonable care in restraining and maintaining their dog on a leash or on their premises. If a dog owner fails to properly restrain or maintain the dog, the owner could be liable in negligence for money damages to the person who gets bitten by a dog in an unprovoked attack. There are also criminal penalties on the books. Note that Indiana law defines owner to include possessor, keeper, or harborer of a dog, not just the official owner. In Indiana, physicians are considered “mandatory reporters” when it comes to dog bites. That is, any physician who treats a patient for dog bite injuries must file a report with the Indiana Department of Health within 72-hours after the incident.

Indiana law no longer accepts the so-called one-bite rule. That is, it used to be that if a dog had never bitten anyone before, then there would be no dog-bite liability because the owner would lack knowledge of the animal’s vicious propensities (dogs are presumed by the law to harmless). The victim used to have to prove knowledge of prior bites; now if you prove that the dog is of a breed that is known to have vicious propensities or there is other evidence that the owner knew or should have known that the dog had vicious propensities, then the dog owner may be responsible for the injuries caused by the dog. There is also a special statute for postal workers; dog owners are strictly (i.e., automatically) liable to them for dog bites. County and local ordinances in Indiana may impose additional responsibilities on dog owners.

A dog attack can inflict serious injuries on the victim, including physical and emotional trauma. If you or a loved one have been victimized by a dog attack, contact the experienced personal injury attorneys at Young and Young in Indianapolis for a free consultation.

Now that we have picked our six person jury, we are ready for the “Opening Statement”.  Please take note of the word statement as opposed to the word argument.  This is not an argument.  It is each party’s opportunity to tell the jury what they think the evidence will show.

A good accident attorney or accident lawyer knows the opening statement is not the time to try and convince the jury that their side is right.  It is the time for each party to give the jury an outline of what the evidence will show.  The opening statement is the story of the case. An experienced car accident attorney will tell the jury the rule of the case.  One example is that a person must never drink and drive.  A drunk driver causes car wrecks – that is why it is a rule.  Another rule might be that a semi tractor trailer must drive the speed limit to avoid a highway accident.  The reason for this rule is the semi tractor trailer ignores the rule it causes a fatal accident, a wrongful death case.

After the rule(s) is set out, the jury is told what the defendant did.  An example might be that the defendant was a drunk driver and pulled out in front of a motorcycle causing the motor cycle accident.  Another example might be that the power was not cut off to the electrical wires causing a construction accident where the person suffered electrocution.

The next part of the story is why the defendant was the cause of the injury. The last part of the story is the harms and losses caused by the defendant’s negligence.  This might include a brain injury.  It could be a spinal cord injury or a back injury.  You might be a paraplegic or a quadriplegic.  You might have a burn injury.  Whatever the injury, you have medical bills and you have lost wages.  You might not be able to return to work.  You are worried how you are going to be able to feed and cloth your kids, and be able to pay your medical bills. And finally, and most importantly, how the injury affects your ability to enjoy life.  The opening statement is concluded by informing the jury what the parties believe is fair compensation.

Next time we will discuss the sequencing of how the evidence is presented.

When we last left off the jury had seen the video and was on its way to the court room to see if they were going to be on the jury. For those of you who missed our first in this series, I offer a little review.

I’ll begin by resetting the stage: You are in a car wreck with a drunk driver. You are in a truck accident with a semi tractor trailer.  You are riding a motorcycle and are in a highway accident. You are in a construction accident. You are injured.  The injury could be a brain injury.  It could be a spinal cord injury or a back injury.  You might be a paraplegic or a quadriplegic.  You might have a burn injury.  What ever the injury, you have medical bills and you have lost wages.  You might not be able to return to work.  You are worried how you are going to be able to feed and cloth your kids, and be able to pay your medical bills.

The insurance company for the person who was negligent, and caused you injury refuses to compensate you fairly for the injuries, medical bills, lost wages and the loss of the ability to enjoy your life.  Your claim must be resolved by a civil jury trial.  Remember, it is a civil jury trial, not criminal.  This means no one is going to jail.  In fact the person who is hurt is not claiming, in most trials, that the person who caused their injuries did it on purpose.  What the injured person is saying is exactly what you mother told you when you broke some window, or spilled your milk:  The harm you caused occurred because you were not careful, it is your fault and your responsibility to make up for the harm you caused.  This is true whether the person was in a road accident or an industrial accident.

The group of potential jurors is seated in the court room.  At this point in the proceedings the group is called the venire.  They are asked to stand by the judge and asked to take an oath to honestly answer the questions put to them by the judge and the attorneys for the people involved in the law suit. The judge will then explain to the potential jurors that this part of the jury trial process is called voir dire.  This is just a Latin term meaning to speak the truth.  The judge tells the jurors the basic outline of how the trial will be run.  The judge will then ask the jurors a series of questions to determine there ability to serve as a juror.  Generally the judge covers the issues dealt with under the statutory reasons why a person cannot be a juror.  We discussed this last time. If the judge allows the persons to remain as potential jurors, 12  to 15 people will be placed in the jury box seats and the attorneys for the people in the lawsuit will be able to ask them questions.  The idea is to try and find six jurors (yes six, it used to be twelve but that changed more than 30 years ago) who can listen to the evidence and be fair to both parties and return a fair and just verdict. 

A good accident lawyer or injury attorney knows that a juror who cannot be fair has no place on the jury.  After the questioning, the lawyers select the persons they think can be most fair.  This part of the jury trial can take anywhere from 2 to 8 hours depending on the judge and the complexity of the case. Once the jury is selected, the next step in the process starts.  This is called the opening statement.  We will up there next time.

A civil injury jury trial is nothing like what you see on TV.  Usually there is no one in the gallery.  The press is usually not stationed outside the door.  The lawyers are not usually yelling at each other, the witness or the judge.  If the trial is being conducted by a competent Judge, and a good injury lawyer, the trial can be fascinating.

Let’s set the stage.  You are in a car wreck with a drunk driver. You are in a truck accident with a semi tractor trailer.  You are riding a motorcycle and are in a highway accident. You are in a construction accident. You are injured.  The injury could be a brain injury.  It could be a spinal cord injury or a back injury.  You might be a paraplegic or a quadriplegic.  You might have a burn injury.  What ever the injury, you have medical bills and you have lost wages.  You might not be able to return to work.  You are worried how you are going to be able to feed and cloth your kids, and be able to pay your medical bills.

You hire a good accident lawyer.  The good injury lawyer knows that any case can go to trial.  He prepares the case by doing a thorough investigation (see December Blog entries for a discussion of why an immediate investigation is essential) and talking to the witnesses.  After a complaint is filed, the case goes through discovery and then an attempt at settlement is made. If the defendant’s (the person who was negligent and caused your injuries) insurance company will not offer to compensate the injured person fairly, a jury trial is the next step.  Remember every car and truck has liability insurance and every contractor has insurance.  In fact in every trial where a person is injured and the injured person is asking for fair compensation the person who was negligent has insurance. Unfortunately the insurance companies will not let the accident attorney tell this to the jury so I am telling you now, remember it. 

The jury trial takes place in the county court house.  The court sends out summons to prospective jurors.  These folks come to the court house on the proper day.  They watch a video about the jury trial process and then they wait to see to which Court they will be assigned.  Just because they are being sent to any court does not mean they will be jurors.  The judge will ask questions of the group.  If the prospective juror knows any of the parties, or is being represented, or has been represented, by either of the lawyers, if the prospective juror is over 65, is in poor health or cannot hear, they will be excused from jury duty.  There is a list of reasons why a person will be exempted from duty.  If you are not in one of these groups the process continues.  We will pick this discussion up in our next blog.

When a Hoosier or their family member is seriously injured in any type of trauma situation, such as a car wreck with a drunk driver, a highway accident with a semi tractor trailer, a road accident, a motorcycle accident, a construction accident or a fatal accident, qualified accident attorneys and accident lawyers know that a structured settlement may be the best thing for a person.  Think about what happens to a person who is seriously injured. The injury might be a brain injury and they cannot take care of themselves or their money.  The injury might be a spinal cord injury which makes the person either a paraplegic or a quadriplegic.  If this is the case the injured person is going to have a lot of future medical bills.  What if the injury is an amputation where the person will have to buy a new prosthetic arm or leg every few years, not to mention wheel chairs and other adaptive equipment.  What if the injury is a wrongful death of a working mother of two small children.  Those children are going to need money all through their childhood and even into young adulthood.

A structured settlement of any or all compensation is a valuable tool for protecting money you will need well into the future.  Think about a child who turns 18, and gets a bunch of cash.  That kid is going to blow all that money.  He/she will blow the money on things that will not last, like a new car.  They might spend it on drugs and alcohol.  They might spend it on new toys like an off-road vehicle.  What they are unlikely to do is invest the money so that it will be there for them when they need it, to get married, pay for their education, start a business, or a lot of other things that will help that child live comfortably.

A structured settlement is money from your compensation that is invested in an annuity, more likely than not with a large bank or insurance company.  The money is paid out, over time, with interest.  The plans can be set up any way you want, it depends on the need.  If the person who is going to receive the money is a child, it may be set up to pay out enough money each year to pay for college.  The rest may be paid out over time to help start a business or pay for a house.  If the person who is getting the money has future medical costs, and is not able to work, the money can be paid out every year just like receiving a paycheck.  Smart injury lawyers know how to set up these settlements so that the interest earned off the money invested is paid out tax free.

You see companies advertising on TV telling you “It’s your money, use it when you want.”  What they are not telling you is they will only pay a fraction of the true value of the structured settlement.  This cheats the unsuspecting injured person out of the money and the security of having future payments.  The people on TV smile and tell you they want to help.  What they really want is your structured settlement at a cheap price.  After all they are in it for the money.  Do not sell to them.  Counsel others not to sell to them.  A structured settlement can be a great thing.  Let it work for you.