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How Are Cases Settled?

Rick — Sun, 28 Mar 2010 20:07:27 +0000

: Image by Getty Images via Daylife

A settlement of a case means that both sides have to agree to the terms of the settlement, how much money is paid and when it is paid as well as any other terms the parties may agree upon. Many people get the idea that they can simply demand a certain amount of money or they will only pay a certain amount and the other side will agreed to it.

Think about that for a minute. If you go out to buy or sell a car, it has a fair market value – what fair minded people would pay for it. A 2003 Ford Tarrus in good condition with 70,000 miles on it has a value that people are willing to pay. Assume for the moment that the fair market value is $4,135.00 for that year, make, mileage and condition. Just because the seller wants more money and inflates the price by $30,000 does not mean that you or someone else would pay that much. The same is true about the value of a case.

If someone offers to buy the car for $500, the seller has no risk in turning down the offer. It’s not close to what the value of the car is and what a reasonable person would pay. If, however, he gets an offer of $4000.00, he risks that there may not be anyone else willing to buy the car at that time for more money. He might lose his chance to sell the car on a timely basis, so he may seriously consider selling the car. He’s got something to lose if he doesn’t sell at that price. Namely, owning the car and taking the risk that it may not sell for a long time and not having the immediate availability of the money from the sale.

In a lawsuit, the risk is that a witness may not make a good impression. Someone may question the motives of the person who caused the injury to the driver. If the driver who caused the injury had been drinking alcohol, a jury may not believe him when he testifies about how the accident occurred. Someone also may question the motives of the person who was injured. Are they likeable? Did they try to get better such as following the doctor’s treatment? You get the idea.

A number of factors go into valuing a case. If it’s settled, both sides have to reach an agreement that fairly values the case and the risks that either side may lose at trial. In the end, if a case is settled, both sides have to be reasonable in valuing the case. Normally, when a case is not settled, it’s because the defendant is not willing to pay the reasonable value of a case. To win at trial, a plaintiff has to convince all of the jurors to vote in favor of them, both that the wreck was caused by the other driver and on how much should be paid to fairly compensate the injured person for their injures, pain and suffering, and future care and impairment (what they still won’t be able to do as a result of the injury). A defense verdict can occur when all of the jurors vote against a plaintiff or when the jury cannot reach a verdict – because not everyone agrees on the same verdict (it only takes one person on a jury not to agree that the plaintiff should win for the jury not to be able to reach a verdict even if all the others vote in favor of the plaintiff in Alabama. Juries in Alabama have to reach a unanimous decision – everyone agrees to the same verdict). Plaintiff’s take those risks into account when trying to settle their claim.

So, simply asking for the moon won’t get a case settled nor will refusing to pay the reasonable value of a case. Both sides have to agree to the terms, otherwise there is not a settlement. That’s what trials are for, to resolve disputes when the parties cannot agree to the terms to settle a case.

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Why Mandatory Arbitration is Bad

Rick — Fri, 12 Jun 2009 02:08:22 +0000

I hear people talk about the cost of litigation, sometimes how taking a case to court takes time and other complaints about court cases. However, you don’t have to read beyond this article to quickly understand why I don’t like mandatory arbitration. (You really should read the article.) Our Constitution gives us the right to a trial by jury. However, the legislatures and courts have said that your right to trial by jury can be signed away in the fine print in the contract when you buy a car, in your employer’s handbook and when your buy other products. Don’t get me wrong, if after there is a dispute the parties agree to arbitration, that is their free choice. The problem is when they make you agree before there is a dispute, there is a good chance the dice are loaded.

We have rules of procedure in courts that govern how you can get discovery. In arbitration, you to have it approved before you can get it in many cases. I once had a case where the arbitrator would not let me get access to certain information. They later wrote we had failed to prove our case because, you guessed it, we didn’t put on evidence about a certain point – the evidence they would not let me have access to. There literally is no good basis to appeal an arbitration decision, it’s binding – read the end of the case. So, if a mistake is made against you, you are stuck.

By the way, who shows up in arbitration the most, you or the company that forced you into arbitration? Could the arbitrators be subconsciously influence by that? Public Citizen found that consumers lost 94 percent of the time. Of course, those pro arbitration say those statistics are not correct. Also, you have to pay for the cost of arbitration regardless of whether you win or lose. In some arbitration clauses, they provide that they will pay most of the bill. Do you want to pay to have your case heard? Do you want your case heard by an arbitrator when the other side is paying most of the arbitrator’s bill?

These are just a few of the reasons why I believe mandatory arbitration is bad. I believe in the Constitution and trial by jury.

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Fast Driving and Drinking are Dangerous – Serious Injuries – Not a Sport on the Highway (Part 5)

Rick — Mon, 21 Jul 2008 05:19:32 +0000

Reckless driving and buying alcohol for minors in Alabama can have huge liability implications for their parent. In a series of articles, I’ve been looking at the tragedy as a result of the driving of Nick Bollea, professional wrestler Hulk Hogan’s son, where the passenger was horribly injured from the standpoint of what would be the applicable law if the accident had occurred in Alabama. In my first post in this series, I covered the tragic injuries sustained by the passenger in the accident. In my second post, you saw the previous instances where Nick had shortly before the wreck been cited for speeding at very high rates of speed and also bragging about getting out of some speeding tickets. In my third post, you could hear an actual conversation that took place between Hulk Hogan and Nick. Most people would conclude that instead of having any remorse for what had occurred, Nick and his father were ignoring Nick’s responsibility for what had occurred. That post highlighted the important role that punitive damages has in protecting the public from drivers like this to prevent that driver and others from “a reckless or conscious disregard of the rights or safety of others.” My fourth post in the series briefly discussed negligent entrustment. The point there was that if you know that someone has been a dangerous driver in the past and you put them behind the wheel, you then are legally responsible in a civil action if their dangerous driving injures someone. Based on the media accounts, it appears that Hulk Hogan would be facing a negligent entrustment claim if the accident had occurred in Alabama and a civil suit was filed here.

Besides the reckless driving charge, authorities cited Nick Bollea for using a motor vehicle in commission of a felony, being a driver under 21 operating a vehicle with a blood-alcohol level of .02 percent or higher. Authorities released a long report detailing parts of their investigation. In the report, it covers the hours leading up to the crash.

Significantly, a store clerk told police that Hulk Hogan with “his son Nick and several other young males” had picked up several cases of beer earlier that day. She said that Hulk Hogan (Terry Bollea) paid for the purchase with either a credit card or a debit card as he signed for the purchase. The police investigator got the receipt and it showed Hulk Hogan purchased: 2 cases of Miller Lite beer, 2 cases of Corona Extra beer, 1 case of Miller Chill beer, and 5 bags of ice. The store clerk said Hulk Hogan (Terry Bollea) carried out two of the packages of beer and one of the other young men carried out the third package of beer, according to the police narrative. Another witness interviewed by the police stated Hulk Hogan came out and put two packages in his truck and drove off alone. Nick Bollea and his friends drove off in the car that later was in the accident. The inference from the police report is that they had one of the packages of beer in their car. The police report states that Hogan, Bollea, Graziano (the passenger who was injured), and two others spent the day drinking and cruising around on Hogan’s boat.

Alabama has a specific statute that makes a person legally responsible for the injuries to a third party if they supply alcohol to someone who causes injury because of their intoxication. Alabama’s Dram Shop Act provides, in pertinent part:

“(a) Every … parent … who shall be injured in person, property, or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving, or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.”

§ 6-5-71 Ala. Code (1975). The Dram Shop Act does not require physically serving the alcohol to the minor (pouring them a drink or handing them a beer). Rather, the statute is triggered in any case in which a person unlawfully provides alcohol to a minor that results in the minor’s intoxication and proximately causes a covered injury. This means if you buy it or supply it, you can be held liable. See Runyans v. Littrell, 850 So.2d 244 , 245 (Ala. 2002). Hence, the mere fact that no one served Nick on the date of the accident would not be dispositive of the case. Providing alcohol for minors gives rise to a cause of action. Marting v. Watts, 513 So.2d 958 (Ala. 1987).

Nick Bollea had a blood alcohol level of 0.034/0.034 g/dl of alcohol in his blood. § 32-5A-191 Ala. Code (1975) states that a minor (under the age of 21) who is driving with a blood alcohol of 0.02 or greater is legally intoxicated. In Alabama, Hulk Hogan would be sued for a Dram Shop Act violation for the injuries from the accident based on the media reports of his purchases and activities prior to the wreck.

Perhaps you have seen a number of news articles of accidents that I have posted and wondered why am I reporting them. The highway is dangerous under the best of circumstances. Add alcohol and a drunk minor and unfortunately disaster is just around the bend. Litigation plays an important role in our society in discouraging the dangerous practice of providing alcohol to minors. I have had family members come to me to represent them when they had a loved one killed on the highway. Their grief and the tragedy in their lives was not a laughing matter. Fast driving and drinking are dangerous.

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Fast Driving and Drinking are Dangerous – Serious Injuries – Not a Sport on the Highway (Part 3)

Rick — Sun, 29 Jun 2008 14:27:46 +0000

When you listen to this below and hear Nick and Hulk Hogan talking on the phone while Nick is in jail, do you think Nick’s driving was wanton and reckless? The Alabama jury instructions state in part:

The purpose of awarding punitive or exemplary damages is to allow money recovery to the plaintiff by way of punishment to the defendant, and for the added purpose of protecting the public by deterring the defendant and others from doing such wrong in the future. The imposition of punitive damages is entirely discretionary with the jury.

…

Wantonness means conduct which is carried on with a reckless or conscious disregard of the rights or safety of others.

clipped from www.youtube.com

Listen and you decide. Next time, more on the applicable law.

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Fast Driving and Drinking are Dangerous – Serious Injuries – Not a Sport on the Highway Part 2

Rick — Fri, 27 Jun 2008 01:37:48 +0000

Nick “Hogan” Bollea, Hulk Hogan’s son, a juvenile is serving an eight month sentence for felony reckless driving. Bollea pled no contest in May to a charge of reckless driving involving serious injury and was sentenced to eight months in jail. Nick’s passenger, who was not wearing his seatbelt, was left paralyzed due to the crash.

Yesterday, I posted the video of his injuries. In my next post, I will provide you with information that might make you understand why punitive damages are necessary to prevent bad driving and to punish people who just plain don’t care if you or anybody else is hurt by their actions. Think about whether you think punitive damages should be a part of a case when you read below how Nick recently was driving shortly before the wreck.

According to the Baltimore Sun,

Nick was busted for unlawful speeding three times in the 11 months prior to the accident, for going 115 mph in a 70 mph zone, 57 in a 30 and 106 in a 70. In a telling interview that Nick did for the September issue of Rides magazine, he bragged about getting out of speeding tickets because of who his father is. He said: “In my silver Viper, I was driving from Miami to Tampa. I got pulled over going 107 [mph] and the guy let me off. He’s like, ‘Hey, I know who you are, just keep going, ya know.’ Dude, I got back on the road and two minutes later I get pulled over going 113. Another highway patrol from the same county said, ‘I just heard on the radio that my buddy pulled you over and let you go. I’m a let you go this time. It’s your second warning. You get pulled over again, you’re probably going to go to jail.’ Three minutes later, [I was] doing 123 in a 50. The guy is like, ‘Hey, I just heard you got pulled over twice in the last 10 minutes. I got to write
you a ticket.’ ”

Obviously, this is not the kind of driving that should be done. You wouldn’t want your family in harms way with that kind of driver. The tragedy of the passenger being paralyzed will last long after the media frenzy, one the passenger will face the rest of his life.

Not only is the lawsuit against the teenage driver, but also against the parents.

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Fast Driving and Drinking are Dangerous – Serious Injuries – Not a Sport on the Highway

Rick — Thu, 26 Jun 2008 14:01:24 +0000

This post begins a series I will be writing on the effect of fast driving, drinking and the terrible injuries that can occur. Warning – this video shows the serious effects of an automobile injury. (You may find it disturbing and graphic though parts of the video have been blurred due to just how bad are the injuries.) I will be discussing in this series the wreck where Nick “Hogan” Bollea, Hulk Hogan’s son was driving. (You may remember Hulk Hogan as the wrestler and television personality). Nick Bollea now is in jail.

clipped from www.youtube.com

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