Pain and Suffering - Marcotte Law Firm

What Happens in a No-Fault Car Accident?

Marcotte Law Firm LLC — Mon, 28 Feb 2022 19:18:18 GMT

It is an unfortunate truth that car accidents are a common occurrence in this country. When more than one vehicle is involved, establishing fault is crucial to an insurance claim, as well as any potential lawsuit. This makes sense; if it is your fault, you or your insurance company should bear the brunt of any incurred expenses by the other party. However, a minority number of states are what is known as “no-fault states,” and Massachusetts is one of them. So what does this mean? Let’s begin with what it does not mean. Being in a “no-fault” state does not mean you can run a red light, crash into someone’s car, and not be responsible. When a car accident occurs, someone is still “at fault.” Rather, the primary difference between fault and no-fault states involves car insurance requirements. No-Fault states provide certain types of insurance to people in almost ayn type of accident, no matter whose fault it was. As you are likely aware, Massachusetts requires every registered car to purchase insurance in four (4) parts.

Bodily Injury to Others: Provides limited coverage for you when other people are injured in an accident. This is very limited coverage and does not cover many types of accidents and injuries. Coverage is also limited to $20,000 per person and $40,000 per accident. You cannot purchase higher limits.
Bodily Injury Caused by an Uninsured Car: Provides coverage if you’re injured by a car that does not have insurance. This can also cover hit & run accidents.
Property Damage: Pays up to $5,000.00 of coverage for any damage you cause to someone else’s car or property. You are allowed to purchase higher limits.
Personal Injury Protection: Pays up to $8,000 for the medical expenses or lost wages of anyone injured while in your car. It will also pay for any pedestiran or bicyclist struck by your car, as well as for injuries you receive when involved in a car that does not have PIP Coverage.

There are additional supplemental coverages that are not required, but are recommended. Please refer to our prior post for a more in depth discussion. However, one optional coverage that is pertinent is for Med Pay coverage. This is similar to Personal Injury Protection coverage in that it will pay for certain medical expenses, regardless of whose fault a car accident is. Where the “no-fault” differs from the “fault” is in Personal Injury Protection insurance (item #4 above and hereinafter, “PIP”), and Med Pay coverage. No-fault states require you to purchase PIP in addition to basic liability insurance. PIP typically pays for your medical expenses and lost wages regardless of who caused the accident. This is where the “no-fault” term comes in. Even if you are at fault for the accident, PIP will cover the expenses. The goal of no-fault insurance is twofold: 1) save time and money and 2) to reduce the likelihood of a lawsuit. Insurance companies will drag their feet and paying claims and lawsuits can take time to resolve. In no-fault states, PIP pays out right away, regardless of fault. As you may have guessed, if people get paid for their expenses right away, the need for a lawsuit may be reduced. However, this does not preclude you from filing a lawsuit if the circumstances warrant it. In order to succeed in a lawsuit, you need to establish the other driver was negligent. You will also need to have at least $2,000.00 in medical bills to pursue a claim for pain and suffering. Further, as our ardent readers are aware, Massachusetts is a comparative negligence state, which means your fault in the collision will be weighed and may offset any potential payout. As always, it is a good idea to speak with an experienced attorney who can help you develop your claim and advice you on the best coursing moving forward.

If you or a loved one has been injued in a car accident and has questions about the various types of No Fault Insurance that are available, call the experienced car accident lawyers at Marcotte Law Firm for a free, no obligation consultation.

Sovereign Immunity and the Mass Tort Claims Act

Marcotte Law Firm LLC — Mon, 11 Oct 2021 18:47:04 GMT

In a previous post discussing Premises Liability, we briefly noted two (2) relevant legal doctrines – Attractive Nuisance and Sovereign Immunity. We recently discussed the Attractive Nuisance doctrine, so today will be focusing on the doctrine of Sovereign Immunity and its codification under the Massachusetts Tort Claims Act. As discussed in previous posts, if you were injured in a car accident or on the property of another, you likely have a cause of action against those persons. However, what happens when the driver of that other car is a government employee or the property you were injured on is a government building? In Massachusetts, it is much harder to file a lawsuit and win when the other party is the government. As you may have guessed, this is due to the aforementioned principle known as Sovereign Immunity. Sovereign Immunity is a very old legal premise that basically states that the sovereign, i.e., the government in this country, cannot be sued even if an individual is harmed by the acts, decisions, or inactions of the government. It dates back to English law, where people were unable to sue the king. Even in this brief explanation, you can see that this is an exceptionally broad principle that absolves the government of virtually all tortious acts. However, there are limits to Sovereign Immunity. In an effort to reduce the scope of Sovereign Immunity and provide certain plaintiffs with some recourse for their injuries, Massachusetts has passed the Tort Claims Act (hereinafter, “MTCA”). While the government is still afforded a great deal of protection – protections that exceed those afforded to a normal property or business owner – the MTCA does provide an avenue for a harmed individual to sue the government through negligence claims. Section 2 of the MTCA states that “public employees shall be liable for injury or loss of property or personal death” caused by negligence, wrongful acts, or omissions. The MTCA also lays out specific situations where a negligence lawsuit is allowed. Examples of these situations include negligently operating a government vehicle (e.g., a USPS truck or public bus); defects or hazards in public buildings; medical malpractice by healthcare providers at a state-run facility; and police brutality or negligence. The MTCA caps damages at $100,000; however, all claims for serious bodily injury against the Massachusetts Bay Transportation Authority are not subject to this limitation. There are also specific requirements in filing a lawsuit. The plaintiff must first present the claim to the employer in charge of the defendant employee. The claim must be presented within two (2) years of the date of the injury. The plaintiff cannot file the claim with the Court of Claims until the employer has accepted or rejected it. The employer must do this within six (6) months of receiving it. If the claim is rejected, the plaintiff may then file the claim with the Court of Claims. The statute of limitations for filing an MTCA claim with the Court of Claims is six (6) months. As you can see, filing a claim under the MTCA can be a complicated matter, one that could take over a year to unfold. Even if you feel you have a clear cut case, it is in your interest to consult with an experienced attorney on how to locate the employer in charge of the defendant employee and how to file with the Court of Claims if that claim is rejected by the employer.

If you’ve been injured by a government employee, it’s important to act fast. There are many limitations on these cases, and they need to be given attention right away. Call the Personal Injury lawyers at Marcotte Law Firm for a free, no obligation consultation.

Swimming Pools, Kids, and Attractive Nuisance

Marcotte Law Firm LLC — Wed, 29 Sep 2021 18:46:38 GMT

In a previous post discussing Premises Liability, we briefly noted two (2) relevant legal doctrines – Attractive Nuisance and Sovereign Immunity. We will address Sovereign Immunity and the Massachusetts Tort Claims Act in a subsequent post, but today we want to discuss the other doctrine: Attractive Nuisance. Premises Liability, property owners have a duty of reasonable care to anyone entering their property. The highest duty of care is owed to those who have express or implied permission to be on that property, known as invitees and licensees under Massachusetts law. An example of this are patrons of a restaurant or supermarket. Trespassers are owed the lowest duty, i.e., people who enter a property without permission. A trespasser cannot sue a property owner for injuries suffered on that property except under “unusually dangerous” situations. There is; however, one group of potential trespassers to whom property owners still owe the duty of reasonable care: young children. This is where the doctrine of attractive nuisance applies. Under this doctrine, property owners can still be found liable for injuries caused to a young child, even one who is trespassing. Massachusetts defines an attractive nuisance as an artificial condition on the property owner’s land that can “attract” children to trespass onto the land and lead to injury. This means that a natural pond, rock face, or other natural condition on the property is not subject to the laws of attractive nuisance. According to the law, a child who trespasses onto another’s property because of an attractive nuisance and who is injured by that attractive nuisance can be compensated for his or her injuries if:

The place where the nuisance exists is a place where the landowner knows or has reason to know that children are likely to trespass;
The nuisance is one which the landowner knows or should have reason to know involves an unreasonable risk of death or serious bodily harm to a child;
Children, because of their youth, are unlikely to realize the danger they are in by coming near the nuisance;
The burden on the landowner of eliminating or mitigating the danger is slight compared to the danger presented to children; and
The landowner fails to take reasonable measures to eliminate the danger or protect children.

If the trespassing child is injured, then the property owner may be found liable if they failed to take reasonable steps to prevent the child from entering the property. Stated another way, if there is something on a property that may be inherently attractive to a child and the child is injured by that object, a property owner may be liable because a child cannot fully understand the risks posed by that object. Swimming pools are the classic example of an artificial condition that may attract a trespassing child; however, certainly not the only one. A quick google search reveals other common examples, e.g., trampolines, tree houses, machinery, etc., cited throughout case law. Using the example of a swimming pool, putting up a fence shows – legally speaking in terms of reasonable care – that the property owner understood the risk a pool may pose to a child and took reasonable care to mitigate that risk. This is why many local municipalities require a fence around a pool. While the law is designed to protect young children, the age of that child is not cut and dry. For example, the landowner’s duties may vary as it relates to a three-year old versus a thirteen-year old. That is to say a court may find an older child would have a greater appreciation of the risks. These claims can be difficult to evaluate and it certainly makes sense to speak with an experienced attorney.

If your child was injured due to an attractive nuisance on another person’s property, call the experienced premises liability lawyers at Marcotte Law Firm for a free, no obligation consultation.

How Do I Document an Injury?

Marcotte Law Firm LLC — Mon, 02 Aug 2021 13:22:34 GMT

How Do I Document My Car Accident Injuries? When you’ve been injured in a car accident, your life can be turned upside down. In addition to dealing with the normal hurdles that life brings, you also have to deal with an injury. Now you’re also having to go to doctor’s appointments and therapy visits while also having to deal with the fact that your normal activities now aren’t as easy to do. How an injury affects your life on a day to day basis is what is generally known as pain and suffering. While many rightly assume that it’s their Personal Injury Lawyer’s job to prove your pain and suffering, it’s actually a joint venture. Like a basketball player without shoes, a personal injury attorney can only do so much to prove injuries if he or she doesn’t have a client who properly documents those injuries. Making Medical Appointments The first step in documenting an injury is scheduling or seeing a doctor. An insurance company (or jury if you go to trial) works under the assumption that if a person doesn’t go to the doctor, that person’s injuries cannot be that bad. While this isn’t always fair, it’s how the world works. Some people are hypochondriacs who see doctors for a small cut on their finger. Others only go to the doctor if their leg is falling off. While no one should go to the doctor if they don’t need to, being a superhero and assuming your injury will get better on its own might hurt your case. Following Up Whenever we see doctors, we’re likely to get a recommendation for some sort of treatment. Whether it’s a referral for Physical Therapy or an order for an MRI, it’s important that you follow doctor’s orders. This is true even if you don’t necessarily agree with your doctor. For example, many people immediately want an MRI of their injury. Unfortunately, many doctors like to try physical therapy before ordering any pricey scans. Even if the therapy doesn’t work, having gone through the process helps show that your injury is bad enough to warrant treatment and it’s serious enough to require additional workups. Second Opinions However, that’s not to say that a second opinion might not be the way to go. Many of our clients get second opinions for a variety of reasons. For example, if a client gets a recommendation for surgery, getting a second opinion about whether that surgery is really necessary can be a good idea. On the other hand, some doctors tell our clients that they’ve reached a medical end result and nothing more can be done. A second opinion can bring a fresh set of eyes and other options that could save you from lifelong problems. Medical Journal Some personal injury attorneys will instruct their clients to keep a journal to document these injuries. We don’t necessarily suggest that to our clients, but we do get them from time to time. What clients should remember is that journals should be used as a way to refresh your memory about your events. It’s not necessary to write down every single thing that happened to you, but rather jot down a few bullet points. For example, if you’ve having back problems that prevent you from bending over, you might jot down a couple things that you can’t do because of your injury, such as tying your shoes or taking out the trash. Experienced Lowell Personal Injury Lawyers At Marcotte Law Firm, our Lowell Personal Injury lawyers have decades of experience representing injured individuals. If you’ve been hurt, call us for a free, no obligation consultation.

Snow and Ice Injuries

Marcotte Law Firm LLC — Mon, 22 Feb 2021 21:05:32 GMT

In Part 1, we discussed the duty owed by property owners in terms of snow and ice removal. In this post, we will discuss what happens if you are injured after slipping on ice or snow. It is important to know what steps are available to you and what, if any, fault you may have in the matter. As noted in the previous post, it used to be much harder to recover damages from a slip and fall caused by snow and ice. A 2010 Supreme Judicial Court (“SJC”) case (Papadopoulos v. Target Corp) overturned an over-a-century-old law regarding the accumulation of snow. The duty placed on property owners was raised and it became easier to prove negligence. However, just because it became “easier,” does not mean collecting damages will be easy. There are still multiple factors at play. All slip and fall cases fall under a class of personal injury claims requiring you to prove negligence. You must establish a duty, a failure to meet that duty, injuries, and that the breach of duty caused those injuries. In a case of snow and ice-induced slip and fall case, the duty owed is by the landowner and he or she owes you “reasonable care” for a safe walking environment, that is, free of ice and snow. Further, you must suffer a significant injury, for example, sprained or broken bones or traumatic brain injury from hitting your head. Finally, you need to establish that the ice was the cause of your slip and fall. There are some additional nuances unique to ice and snow slip and falls that are important to know. Like most personal injury claims, slip and fall accidents have a three-year statute of limitations. However, for snow and ice slip and fall cases, the injured person must notify the property owner within thirty (30) days of their fall that you were injured on their property. This requirement serves two (2) functions. One is to give the property owner notice of a possible pending lawsuit. Next, it protects you from a property owner claiming they were not aware anyone was ever injured on their property. If you fail to provide this timely notice, you will be unable to file a claim. Another potential hurdle in your claim is the legal principle known as “comparative negligence.” Comparative negligence assesses a percentage of fault on both the injured party and the property owner, that is, you both share the blame. While the property owner is responsible for removing ice and snow, when walking on a slippery surface, you too have a duty to exercise reasonable care to avoid getting hurt. By way of example, assume you break your leg after slipping on ice in front of a restaurant. Lets further assume that the restaurant owners failed to “reasonably” de-ice the sidewalk. However, it was shown that you were walking and texting on your phone when you fell. While it is the restaurant owners’ “fault” for not removing the ice, the fact that you were not paying attention to where you were going can place some of the blame on you. In this instance, a court could find that while the restaurant owners’ were at fault, so too were you. Under comparative negligence, they can assign a percentage to you (you are 25% at fault) and the restaurant owners (they were 75% at fault). This means any damages you receive will be reduced by 25% (your percentage of fault). This is important to know, because under comparative negligence laws in Massachusetts, the plaintiff can only be compensated if their share of the blame is less than 51%. (A 2020 SJC case dealt, in part, with the issue of comparative negligence. You can read the full description of this case in a prior blog post here). As if this did not all seem daunting enough, oftentimes, and especially when businesses are responsible, insurance companies get involved. These cases are very fact-specific, and what constitutes “reasonable” snow and ice removal or treatment is often at issue. Therefore, insurance companies try to place blame on the accident victim for the fall. By now, it should be clear that there are a lot of moving parts when it comes to establishing your slip and fall case. It is in your best interest to work with an experienced personal injury attorney to help you navigate through this process.

The Anatomy of a Lawsuit

Marcotte Law Firm LLC — Mon, 30 Nov 2020 12:36:52 GMT

The main goal of personal injury lawsuit is to make people whole after an injury caused someone’s negligence. This compensation is usually broken down into three parts: medical expenses, lost earning capacity (lost wages), and pain & suffering. However, many people don’t realize that there’s a lot more to proving a case in front of a jury. If you suffered harm due to the action, or failure to act, by another person, group of persons, or business, you may have a personal injury lawsuit. In law books, the technical term is commonly known as a “cause of action.” A cause of action is a set of facts under which one person sues another person, business, or organization. A cause of action can arise in a variety of ways. First, it can occur due to either an act or even a failure to act. This means that some cases happen because someone didn’t do what they were supposed to do. Others arise because someone did something improperly. A cause of action can also arise on account of a breach of duty, or a violation of the law. This means that there is a law or other regulation that requires someone to act a certain way, and then that person or entity doesn’t meet those requirements. Obviously, the circumstances of the facts of your case will have an impact on your cause of action. These facts supporting your cause of action support your “claim,” where you detail what the Defendant did wrong, and the injuries you suffered. For example, compensation might include coverage of your medical bills and future medical care, lost wages and potential future lost wages due to your injury. If your case ends up going to trial or arbitration, you’ll have to prove basic elements: (1) duty of care; (2) breach of duty; (e) causation; and (4) damage or injury. This is true whether the trial is in front of a jury or simply the judge. To help illustrate these elements, let’s use the example of a slip and fall injury at a supermarket. Duty of Care This refers to the responsibility one person or business has for the safety of another person. This duty can be created by law or may also fall under a reasonable care standard. In the supermarket example, the owners have a duty to offer a safe place – free of hazards – to buy your groceries. If the store owner invites customers into its facility in the hopes of selling products, it is responsible for making sure that there are no dangerous conditions that could injure customers. Everyone agrees that it is reasonable to expect you’ll be safe and free of hazards while buying groceries. Breach of Duty After establishing a duty existed, you must show that there was a “breach” of that duty. In other words, the supermarket owners did not uphold their responsibility to keep their store free of hazards. As with duty, sometimes breach of duty is defined by law. In other cases, it is common sense and reasonable care, such as making sure there is no standing water or dangerous slick surfaces in a supermarket. Causation You must be able to show that the breach of duty was the cause of your injuries. You need to prove that whatever happened to is the cause of your condition. Going back to the supermarket, this means that you must be able to link the supermarket owners’ unsafe and slick floors as the reason you slipped, fell, and hurt your back or broke your arm. Damage or Injury This is when you get to your injuries. This is typically established by your medical treatment following the accident. The injury can be either physical (broken bones, etc.) or psychological trauma like PTSD. It’s very common for some people to have both physical and psychological injuries. If your lawyer successfully proves a cause of action, the other side is considered liable for monetary compensation for things such as medical bills, car repairs, lost wages, and pain and suffering caused by your injury. In order to receive full compensation for your injuries, you should seek the help of an experienced personal injury lawyer.