TRYING THE AUTOMOBILE CASE IN ALABAMA

By Will O. (Trip) Walton, III

INITIAL CONSIDERATIONS FOR THE PLAINTIFF

In today's dog-eat-dog litigation climate, the plaintiff's attorney must be concerned about liability, the extent of damages (i.e., to both property and person), the potential sources of payment for those damages and last, but certainly not least, the plaintiff. The plaintiff's attorney must begin evaluating his or her case from the initial interview with the plaintiff keeping in mind how the plaintiff will present to a judge or jury. The good old days of hiding the undesirable plaintiff in hopes of a quick settlement are long gone; therefore, the plaintiff must be credible and presentable in all respects. Although there are numerous areas that must be covered during the initial interview, there are certain aspects of a potential personal injury claim that you must explore which should help you decide rather quickly whether or not to accept the plaintiff's case. To begin with, you must decide whether or not you like the plaintiff. Due to the hostile anti-plaintiff environment in which we work and because of rapidly rising litigation costs, the plaintiff's appearance and credibility are of great importance in determining whether or not to accept a case. If you do not like the plaintiff or if there is something about the plaintiff that seems insincere, you can bet a judge or jury will feel the same way. Therefore, you should always be aware that you are not required to accept a case, and many times you will be much better served in rejecting the case immediately if you have bad vibes.

In order to properly evaluate a potential claim, I strongly recommend using some sort of initial interview sheet prior to and during the first client meeting. I typically have the prospective client fill out a short, simple form in the waiting room, and I will use a more detailed form during the initial meeting. As boring and simplistic as this may seem, it can save you headaches and heartaches down the road. In fact, after doing hundreds of intakes over the past twenty (20) years, I find that I always leave something out if I fail to use my form. Therefore, as routine as it may seem, I highly recommend actually using a detailed form when conducting your initial interview with a prospective client.

Because there is usually no preexisting relationship between the attorney and potential client, it should be kept in mind that both the attorney and the accident victim are evaluating each other at the initial meeting in order to determine whether or not to enter into an attorney-client relationship. Hence, the attorney must make a good impression and establish a good rapport with the potential client. It is extremely important that the accident victim believe that you are competent and professional in your chosen field.

At the initial meeting, it is extremely important to get information about the accident victim's background in all areas of his or her life. This includes, but is not limited to, the following: family background, religious preference, educational history, employment history, medical history, criminal history, military history, financial history, bankruptcy history, prior personal injury claims, prior hospitalizations, preexisting conditions, prior injuries to the same location, chronic chiropractic treatment, disability claims, workers' compensation claims, and the number of prior and subsequent automobile accidents.

Along with the above type information, you should make sure and get the standard information during the initial interview. This would include the victim's name and address, home, cell and work phone numbers, and place of employment. You should obtain the date of birth, place of birth, social security number, and driver's license number. You should also determine whether or not your prospective client's driver's license has ever been suspended or revoked and advise said prospective client that you routinely order a motor vehicle record regarding your client and the at-fault party involved in the collision. I also recommend running a civil and criminal background history on all major players in the case.

It will also be necessary to get as much information as possible about the accident itself during the initial interview. You will need to know the date, time and location of the accident. It is particularly important in the State of Alabama to determine the appropriate county in which the claim must be filed due to the fact that there are vast differences in the value placed on personal injury claims in the different counties throughout Alabama. Therefore, if you handle a personal injury claim in a county in which you are not familiar, I strongly urge you to associate local counsel to assist you in evaluating the value of the claim.

You will also need to identify each person involved in the accident including drivers, passengers, pedestrians, vehicle owners and witnesses. Although a lot of this information cannot be obtained in the initial interview, I strongly suggest that you review it with the prospective client and follow up with an investigation subsequent to the initial meeting.

The attorney should also obtain information regarding all vehicles involved in the collision. If a plaintiff has not obtained photographs of the vehicles, this should be done immediately to preserve evidence of the collision damage, or the lack thereof. If the attorney learns that there is little or no collision damage (i.e., minimal impact), he or she must be cautious upon proceeding with the claim. The days of cost effective litigation when there is minimal impact are over. In today's litigationclimate, it does not take a superstar to convince a jury that a collision involving only minimal impact can only result in minimal injury. Therefore, it is extremely important to determine the amount of collision damage to the vehicles involved as soon as possible.

Naturally, the attorney will need to discuss the facts and circumstances surrounding how the accident occurred during the initial interview. This would include things such as the location of the accident and the mechanics of the collision. In fact, although it may sound ridiculous and is certainly time consuming, I highly recommend that you or your trusted investigator go to the scene with a prospective client as soon as possible after the collision so that the case can be properly evaluated in the beginning.

After obtaining as much information as possible regarding the victim's background and matters concerning the accident, the attorney must explore the victim's injuries and damages. I recommend having the victim start at the top of his or her head and describe each and every injury, ache and/or pain suffered as a result of the collision. The attorney needs to identify each and every healthcare provider and list any and all medications prescribed by each. Furthermore, assuming you accept the case, I would recommend that you have your client contact your staff after each major medical appointment with an update regarding treatment of his or her injuries and the date of the next appointment. This practice is advantageous for several reasons. First, it allows the attorney to monitor the client's medical treatment while developing an attorney-client relationship. This practice also prevents a lag between the time when the client reaches maximum medical improvement and the request for all medical records and expenses. Hence, the client and the attorney stay in contact and the case can move along more quickly with constant updates and evaluations.

Another reason to have the accident victim stay in touch with your office on a regular basis is to guard against excessive medical treatment and/or excessive chiropractic treatment and bills. Each of us has had the case where a client comes in for the initial interview and you learn that he or she has been treating with a chiropractor for approximately eighteen (18) months since the collision and has run up a total of $20,000 in medical bills. When this scenario presents itself, it is simply a no win situation for the attorney and accident victim. This is particularly true if there is no consulting orthopedic and/or neurosurgeon who have been consulting with the chiropractor throughout the treatment plan. Therefore, I caution you to avoid cases with excessive chiropractic treatment and bills, particularly when there is no referring and/or consulting medical doctor.

The attorney should also cover any and all preexisting conditions in the initial interview. Although there is a cause of action for the aggravation of a preexisting condition, these cases are extremely difficult and all other aspects of the case must be extremely strong before getting involved. In other words, if there are any other weak links in the plaintiff's claim such as minimal impact or questionable liability, I would strongly recommend that you avoid accepting cases with preexisting conditions. This is also true regarding prior injuries to the same location. We have all had the unfortunate accident victim who is involved in a vehicle collision through no fault of his own, and, as luck would have it, he is involved in a second collision through no fault of his own and injures the exact same shoulder or vertebra that was injured in the first accident. These type cases are tough because the first defendant blames the second and the second defendant blames the first. In a utopia judicial system, you might have a situation where the first defendant and the second defendant agree to evenly split plaintiff's damages. However, in the real world, these type cases will beat you up both financially and mentally. Therefore, be careful when evaluating claims with prior injuries to the same location.

It is also important for the attorney to explore the possibility of a claim for lost wages and/or income (i.e., past and future) during the initial interview. The attorney needs to ask if the victim has been allowed by his or her treating physician to return to work. If not, has the treating physician indicated if and when the victim can return to work? The attorney must make sure that the accident victim understands at least two (2) things about not working after the accident. First, if the victim's treating physician does not issue a no-work order, he or she is not going to recoup lost wages or income for the period they lay off of work. Second, although many may think that not working builds the case, it does not! In fact, unless your client has a catastrophic type permanent injury (i.e., paraplegic/quadraplegic), he or she should be advised to get back to work as quickly as possible. In reality, most car wreck victims should be able to return to work within several days to several months after the collision. This is important because it shows that the plaintiff is attempting to get back to normal, and it further gives the plaintiff a pool of witnesses (co-workers) to testify as to their complaints and problems subsequent to the collision. In my opinion, it is always preferable to have someone other than the plaintiff whine about their injuries. Therefore, co-workers and other lay witnesses are excellent choices. Furthermore, the fact that the plaintiff goes back to work after being injured helps his or her credibility, and credibility is probably the most important aspect of a plaintiff's case.

It is also very important to discuss with a prospective client the different sources of payment for their potential injury claim. The attorney needs to determine if the at-fault party had liability insurance. The attorney must obtain a copy of the accident victim's liability policy and determine if it contains uninsured/underinsured motorist coverage and whether or not it contains medpay, and, if so, in what amount. The attorney needs to determine whether or not the at-fault party was under the influence of alcohol at the time of the accident, and, if so, when and where said alcohol was purchased and consumed. It is also important to determine if a product failure or defect contributed to the collision or exacerbated the damages. It is important to determine if a defect in the roadway or a defective traffic control device contributed to or caused the accident and injuries. A county or city may be responsible, and, if so, the attorney should advise the potential client of the non claim statute requiring a written sworn statement of claim to be filed with a municipality within six (6) months of the accident and with the county within twelve (12) months of the accident.

I also like to ask the client at the initial meeting what his or her expectations are regarding the value of their claim. If a prospective client has a strong opinion regarding the value of his claim, I become very skeptical. I typically ask the client to explain why they think the case has the value they claim, and then I ask the client to give me the benefit of their experience in evaluating automobile claims in the county in which it is to be filed. If a prospective client does not show signs of reasonableness after discussing the difficulty of evaluating a claim, particularly in the early stages, I seriously consider whether or not to accept the case.

Another important aspect of the initial interview is to determine how and why the accident victim came to you or your firm. Because the personal injury market has become extremely competitive, I believe it is important to document whether or not the cost of advertising (i.e., yellow pages and billboards) is truly worth it. My staff routinely asks each caller how they decided to contact our office and makes a notation of the response. This same inquiry can assist you and your firm in determining how your former clients feel about your work. If you receive numerous referrals from former clients, it is a good sign they were satisfied with your services and are willing to recommend you to their family and friends.

Another subject I ask of a prospective client at the initial interview is whether or not they have retained or consulted with other attorneys regarding the collision at issue prior to their appointment with me. It is important to keep in mind that if you are not the first lawyer to represent the client, you may want to slow down and ask a few more questions before accepting the case.

If, after the initial interview you and the prospective client decide to enter into an attorney-client relationship, a contract should be executed. Typically, in an automobile case, the attorney and the client will agree to a contingency fee arrangement. The contract must state the method by which the fee is determined, including the percentage to be paid to the attorney in the event of settlement or trial. The contract should state whether or not the services shall continue beyond a trial for appeal, and the contract must further state who pays the litigation expenses and whether the repayment of these expenses is contingent upon the outcome of the case. Ala. R.P.C. 1.5(c).

There are four (4) other items that I would also include in the attorney-client contract. The first is an hourly rate or other method of determining the fee if representation is terminated prior to the conclusion of the case. Second, and in this same vein, is a provision that allows you to terminate the attorney-client relationship if pursuit of the claim is not economically feasible and/or the client unreasonably refuses to settle or dismiss after having been fully informed by said attorney of the relative merits and likelihood of success. Third is a provision for the payment of a referral fee. The Alabama Rules of Professional Conduct allow the payment of a referral fee in a contingency fee case as long as the client is advised of, and does not object to, the division of the fee, and the total fee is not "clearly excessive." Ala.R.P.C. 1.5(e). Due to the fact that a lot of my cases come from referring attorneys, I have always included language regarding the division of fees in my attorney-client contract. Finally, with the advent of the new federal privacy legislation (i.e., HIPPA), it may be advisable to add a provision to your attorney-client contract regarding the collection and dissemination of your client's medical records and other medical information.

Now that the contract has been signed, you will need to quickly move forward with your investigation regarding the accident, damages and injuries. The accident report is probably the most valuable source of initial information regarding the facts and circumstances surrounding the accident. It is also a valuable tool in testing the credibility of your client which is something that you must continuously evaluate throughout the claim/litigation process. It is simply amazing how many clients forget to tell you in the initial interview that they were speeding or under the influence of alcohol at the time of the collision. Hence, the plaintiff's attorney must constantly review all the facts and circumstances surrounding a case to make sure every aspect is above board. It is your career, time and money so pay attention to the details.

Photographs and videos of the vehicles involved, your client's injuries, and the accident scene are extremely important and useful. They can save you a lot of money, and they can make you a lot of money. They are simply a must! Photographs need to be taken as soon as possible and, assuming your client's injuries change, as often as needed. Nothing is worse than to find out that the client had a huge hematoma (i.e., bruise) covering a large portion of her body to later discover that no photographs were taken to document the injury/trauma to her body. Remember, the plaintiff has the burden of proof so you must begin building the case as quickly as possible so that you do not lose valuable evidence. It is quite possible that when your client is deposed twelve (12) to eighteen (18) months after the accident, he or she will look perfectly healthy, will be back at work, and will be functioning basically the same as before the accident. Therefore, photographs and/or videos will allow you to take the case back in time and clearly show your client's injuries and damages.

Medical reports are also a valuable tool for proving and/or evaluating your case. The emergency room report and ambulance/paramedic reports should be obtained immediately. Hopefully they will indicate immediate injury which is a good thing in a personal injury case. These reports can also be used to check your client's credibility. You must review the history given at the scene and emergency room for factual inconsistencies. If you don't, I guarantee the insurance adjuster and/or the defense attorney will. So, do it early and pay attention to the details. Although I recommend securing a copy of the emergency room and ambulance/paramedic reports immediately, I typically do not request copies of my client's other medical records, reports and medications until he or she reaches MMI or is released from treatment from a particular doctor. However, in order to help the insurance adjuster build the file, I do send letters on a regular basis regarding any and all significant medical procedures that occur during my client's treatment. I will also keep the insurance carrier up to date regarding medical expenses and prescriptions throughout my client's treatment. Because the insurance adjuster and/or the defense attorney are the persons who will ultimately help or hurt your chances of settlement, I work with them as much as possible unless and until I see there is no give and only take.

I recommend ordering your client's driving record and the defendant's driving record. I further recommend running a criminal history check on all major players in the case, including key witnesses. I also recommend running a civil litigation check regarding your client and the defendant to determine other civil litigation. Here again, this information allows you to continue to evaluate the credibility of your client, and it may also give you some good ammunition against the defendant and/or a defense witness.

The attorney should obtain copies of insurance policies covering the vehicles involved in the accident, any other vehicles owned in the client's household, and any policies of insurance providing medical coverage to the client. These documents will assist the attorney in finding sources of payment for damages as well as potential subrogation claims. Many times you will have clients in the State of Alabama who do not have health insurance to cover medical treatment. These people find themselves virtually shut out from receiving treatment after they are discharged from the emergency room and/or hospital. Therefore, it is extremely important to find medpay and/or other sources that will assist these people in getting treatment for their injuries. Hence, gathering insurance policies and finding ways to pay for your client's treatment should be included in your initial investigation.

You should obtain a statement from any and all material witnesses as soon as possible after the accident. Witnesses, like the rest of us, are busy. They have jobs, families, classes to attend, etc. Therefore, the sooner you get a statement from them, the better off you will be. For this reason, I recommend that you or your staff immediately contact any and all witnesses listed on the accident report and/or any and all other witnesses who have come to light as quickly as possible and get them to sign a statement. Here again, you are building your client's claim and you are continuing to evaluate their claim and your client's credibility.

Whether or not to get an expert is debatable. I have handled hundreds of motor vehicle accident cases without the use of an expert. I like to keep it simple. Quite frankly, I think they are overused and do very little to assist the case other than increase the cost. Of course, there are some cases where an expert will be required, and I typically use an expert for the initial investigation and assessment in all serious tractor-trailer cases. The accident reconstruction expert can be helpful in developing your theories and in determining the course of future investigation and discovery. Furthermore, although experts are probably overused, they should probably be consulted in most serious cases.

If you do not have time to go to the scene of the accident during or shortly after the initial interview, I strongly suggest that you do so early into the case. The scene should be documented by photographs and video and in some cases a professional survey may be necessary. Therefore, get to the scene early on so you can get a better feel for the case and understand what your client and others are describing when they talk about the accident. You feel and look like an idiot at deposition or trial if you do not know the scene of the accident.

I would urge you to go ahead and get your client to bring in three (3) to five (5) years of income tax returns if it appears that a claim for lost wages or income will result. Paycheck stubs for several months preceding the accident will also be useful in determining a person's income as will statements and other documents from the client's employer. Many times, you will find that the client foregoes a claim for lost wages because they do not want someone digging through their income tax records. Because of this, I typically discuss the need for income tax returns in the first couple of meetings with my clients to determine if they are seriously hurt and to get a feel for whether or not they intend on going back to work. Many times when they decide that they do not want someone reviewing their tax returns, they will get back to work and forget about a claim for lost wages or income. Here again, you are constantly assessing your client's credibility and the extent of their injuries.

It is always a good idea to ask your client and/or your client's family members whether or not there was a newspaper account of the accident and/or any photographs taken and/or published by the local newspaper. Some of the best photographs of accident scenes in small towns come from the local newspaper. In your larger metropolitan areas, some of the more serious accidents make the television news. If this is the case, you will need to secure a copy of the newscast concerning said accident which is an excellent tool for use at mediation. I recall a case where our client was buried alive by sand when a dump truck ran through a red light of a major intersection without brakes and flipped over. All three (3) major news channels covered the accident on the 10:00 o'clock news and showed video footage of our client being dug out from under the sand. The video was extremely effective during mediation and helped secure a just settlement for the victim. Therefore, ask your clients about any media coverage regarding the accident and follow up quickly to secure copies.

While gathering the initial information concerning your client's case you may find that additional medical expertise is needed to properly evaluate the claim. This can occur when a client does not seem to get better after months of conservative treatment or when it is discovered that the client has received all medical treatment from a chiropractor. When these or similar situations occur, the plaintiff's attorney must decide how to best help the client. I want to see my clients get better, and I want the maximum true value of my client's claim. Therefore, if a second opinion is needed, I will suggest that they seek additional medical advice. I can't tell you how many times I have had a client go to the same doctor over and over with no relief. After reaching MMI and being discharged, the client is frustrated and no better off after all the medical appointments and physical therapy. I then refer the client to an orthopod or a neurosurgeon who discovers after use of an MRI that the only credible way to fix the problem is surgery. Hence, in appropriate circumstances, I think it is prudent to use an independent medical exam or refer your client to a qualified physician for a second opinion. Otherwise, the client cannot get better and their personal injury claim does not reach its full potential.

During the initial interview and investigation, you must be conscious of whether or not you can prove liability. As most of you know, there are two (2) basic components to any personal injury claim. The first is being able to prove liability, and the second involves injuries and damages which resulted from said collision. In order to be successful, both components are necessary. Although you may take a chance on a serious injury or death case without clear liability, I would not recommend pursuing the small to medium case unless liability is unquestionable. The reliability is that all motor vehicle accident cases are not good cases. Therefore, if you determine through your initial interview and/or your initial investigation that liability is questionable or weak, I would suggest that you reject the claim and move on.

Over the past several years I have noticed a greater need for legal assistance regarding the property damage portion of automobile claims. In evaluating the property damage, I typically run all the details regarding the car on the internet at sources such as Kelley Blue Book.com. If my client is not happy with the value at Kelley Blue Book, I recommend that he or she scan the newspapers and/or go to local car dealerships and do their own market survey. In other words, I have them get someone familiar with the year, make, model and mileage of their car do an evaluation of said car on the dealership's letterhead. This along with sales information from the want ads concerning car sales can be helpful in negotiating upward with an insurance carrier. You need to remember that the insurance carrier is always thinking wholesale value, and your client is always thinking retail value. In my opinion, the true value is somewhere in between. Of course, if the vehicle is not totaled, the attorney should ascertain the reasonable length of time it will take to repair the vehicle and assist the client in obtaining a rental car during the time of repair. If client's vehicle is totaled, the attorney should determine the storage and towing charges and should encourage the defendant's insurance carrier to come forward with a fair offer as quickly as possible. Furthermore, in addition to damage to the vehicle, the attorney should explore the loss and damage to other personal property such as jewelry, clothing, music CD's and cassettes, etc.

As your client continues to receive medical treatment, medical expenses will continue to grow. If your client's automobile liability insurance policy has medpay and a portion or all of said medpay is used to pay medical bills, the attorney needs to know whether or not the client's insurance carrier subrogates regarding medical payments. If so, the attorney can charge a reasonable fee for securing said monies. Other sources that may pay your client's medical bills include health insurance, Medicare and/or Medicaid. Assuming your client's medical bills are paid to some extent by these sources, they will more than likely pursue subrogation claims regarding the amounts they pay. Therefore, you should be aware of this aspect of your personal injury claim.

Skill in handling subrogation claims is convincing the insurance carrier to reduce or waive subrogation claim so that your client sees a larger portion of his or her recovery. Blue Cross Blue Shield of Alabama will typically cut the amount of their subrogation lien by the percentage of your contingency fee. In other words, if you have a contingency fee of 40%, they will typically cut their subrogation lien by 40%. However, in hardship cases, I have seen them waive all, or almost all, of their lien. When dealing with government insurers such as Medicare and Medicaid, you will be required to provide many more details in an effort to reduce their subrogation liens. The government agencies typically want copies of any and all settlement documentation, copies of the settlement check, and may require your clients to submit financial statements on forms provided by the government. As a practical matter, it can take months to resolve a subrogation lien with Medicare or Medicaid. Therefore, I typically establish the amount of the lien in writing with Medicaid or Medicare and disburse the remainder of my client's monies. The amount of the lien is either kept in our trust account or placed in an interest-bearing account in my client's name but secured by the requirement of two (2) signatures. Hence, if there is a substantial amount of money, the client may feel better about the wait if interest is being paid.

After getting involved in a case, it is important to begin thinking about how you will prove your client's noneconomic damages such as pain and suffering, mental anguish and inconvenience. People (i.e., jurors) simply deplore a whiner; therefore, it is imperative that you let others do the whining for your client. Lay witnesses are ideal for this type of testimony and should be used liberally throughout trial. People such as next door neighbors, the friend who drove your client to the doctor and physical therapists over and over, in-house nurses, co-workers, classmates, and your client's spouse and other family members are some, but not all, who can be called. It is important to remember noneconomic damages such as pain and suffering, mental anguish and inconvenience typically make up the largest part of any settlement or verdict in the small to medium automobile injury case. Therefore, you need to begin developing your witnesses early in the case so that you can properly prove these type damages.

A plaintiff's attorney in Alabama who handles automobile injury cases must be familiar with uninsured and underinsured motorist issues (i.e., UM/UIM issues). Because the law regarding UM/UIM is constantly and forever evolving, I high recommend that you attend detailed seminars regarding this subject matter every year or so. For the purposes of this paper, I will simply refer you to the following Alabama Pattern Jury Instructions which will give you some guidance regarding where to start and what you must prove. They are as follows:

APJI	20.50	UNINSURED MOTORIST INSURANCE COVERAGE - ELEMENTS OF PLAINTIFF'S CASE
APJI	20.51	DEFINITION OF "UNINSURED"
APJI	20.52	HIT AND RUN CASES WHERE THERE WAS PHYSICAL CONTACT WITH THE PLAINTIFF
APJI	20.53	HIT AND RUN CASE WHERE THERE WAS NO PHYSICAL CONTACT ETWEEN THE UNKNOWN VEHICLE AND THE PLAINTIFF
APJI	20.54	A CASE IN WHICH BOTH THE UNINSURED MOTORIST AND THE INSURANCE CARRIER ARE PARTY DEFENDANTS
APJI	20.59	INSURANCE - UNDERINSURED MOTORIST INSURANCE COVERAGE - ELEMENTS OF PLAINTIFF'S CASE
APJI	20.60	INSURANCE - CASES WHERE THE UNDERINSURED MOTORIST AND THE UNDERINSURED CARRIER BOTH ARE PARTY DEFENDANTS OR THE INSURANCE CARRIER IS IN THE CASE BY WAY OF INTERVENTION AND ELECTS TO PARTICIPATE IN THE TRIAL

As a general rule, I notify my client's automobile insurance carrier and any and all other automobile insurance carriers which insure vehicles of the same household. In other words, I send a letter to my client's carrier and if my client's great aunt and first cousin live under the same roof, I also send their carriers notice of a potential UM/UIM claim. I recently had a client who was struck from behind by an underinsured driver while he was driving his neighbor's John Deere tractor down the highway. As always, I fired off my UM/UIM letter to my client's automobile liability carrier and guess what -- the coverage applies! Interestingly enough, when the adjuster for the company received my letter, he called me to ask if I had lost my mind. I told him it was simply my policy and that unless and until his company denied the claim, I was of the opinion that we had a right to the coverage. He called me several weeks later dismayed that his company agreed. At any rate, there are numerous situations that you need to be aware of where UM/UIM coverage can apply.

For example, the uninsured/underinsured motorist statute in Alabama does not require actual physical contact between the unknown vehicle (i.e., phantom vehicle) and claimant. However, the Eleventh Circuit held that a policy of insurance requiring corroborating evidence in cases of no physical contact between the insured and the phantom vehicle was appropriate. Hence, there is a heightened requirement of proof when your client claims that he or she was run off the road and injured by a vehicle that did not stop.

Because of a recent Alabama Supreme Court Opinion, uninsured motorist benefits may be more difficult to reach if the tort feasor enjoys some type of immunity or other defense. Ex Parte Carlton, 2003 W.L. 1861013, Ala., April 11, 2003. Until this decision, the Supreme Court had allowed uninsured motorist claims in the following three (3) situations: (1) where injured military personnel were prohibited from pursuing a claim against the United States Government when the plaintiff was involved in a collision with a government vehicle being operated by a civil employee of the U. S. Government, (2) where an injured party was involved in a collision with a police officer or deputy sheriff who are immune from suit, and (3) where an injured passenger was blocked by the Guest Statute which gave the driver a defense to negligence. Now that these avenues are gone, you may have the unpleasant job of informing your client that there is nothing you can do.

Keep in the mind that UM/UIM coverage can be stacked to increase the amount your client can recover. Basically, a person can stack up to three (3) separate vehicles on a single policy or an unlimited number of vehicles if they are covered by separate policies of insurance containing UM/UIM coverage. For instance, if your client is involved in a collision with an uninsured driver and your client has three (3) separate cars fully insured on one policy, he can stack all three (3) cars. However, if he had four (4) cars or more on the policy, he is limited to stack only three. On the other hand, if this same client had ten (10) vehicles which were all fully covered on separate policies, he could stack all ten (10) of them.

It is also important to keep in mind that the statute of limitations on a UM/UIM claim is six (6) years, and if you intend on pursuing a UIM claim, you must put the UIM carrier on notice as soon as possible. Furthermore, you cannot settle with the tort feasor without the UIM carrier's permission. If you do, you waive your right to pursue your client's UIM claim and you will get sued. Lambert v. State Farm Automobile Insurance Company, 576 So.2d 160, 167 (Ala. 1991). Hence, it is important that you understand the law regarding UM/UIM coverage.

If, after investigating the case, you discover that the at-fault party was under the influence of alcohol or drugs, the value of the case just went up! You should immediately secure a copy of any and all toxicology reports regarding said alcohol or drugs. On the other hand, if you discover that your client was using alcohol or drugs at the time of the accident, you probably need to consider rejecting the claim unless you can artfully maneuver around it. I have had numerous cases where marijuana has been found in my client's vehicle or on my client's person after an accident; however, because possession of the weed was neither material nor relevant to prove liability or damages, the trial court ruled it could not come in. At any rate, always look for alcohol use or drug use in each and every case so that you do not get bushwhacked with it down the road after you have spent $5,000 to $10,000 on the case.

The plaintiff's attorney should also be aware of the Civil Damages Act which deals specifically with the sale or furnishing of alcohol to a minor and the Dram Shop Act which holds the Dram Shop owner legally liable for all damages, including punitive damages, caused by someone who has sold liquor in contravention of state law. The Dram Shop claim typically involves a lawsuit against a restaurant or bar owner where it is alleged that the injured or deceased party was served alcohol after being noticeably intoxicated. Interestingly enough, it should be kept in mind that a minor does not have a cause of action under the Civil Damages Act. The cause of action lies with the parent or guardian of said minor. The same is true of the intoxicated person under the Dram Shop Act. In other words, the intoxicated person who was injured or killed has no cause of action; however, the husband, wife, child or parent can pursue the claim. Hence, it is important to know a little bit about the Civil Damages Act and the Dram Shop Act so that you will recognize the cause of action when you are meeting with a potential client.

The plaintiff's attorney needs to be able to recognize potential causes of action against governmental entities when it appears that the roadway is a contributing factor or cause of an accident. Under Alabama law, local governmental entities, by virtue of their exclusive authority to maintain and control the roadways, are under a duty to keep streets in repair and in a reasonably safe condition for their intended use. Persons traveling on a city street may reasonably rely on the city to fulfill its obligation to maintain its streets and public ways in a reasonably safe condition for travel. Therefore, if it appears that a defective roadway, street or dirt road contributed to or caused the accident, the attorney should begin to look at potential claims against the appropriate municipality or county. A negligently maintained or malfunctioning traffic light or the failure of the local governmental entities to properly maintain stop signs and/or other traffic control devices may also lead to a cause of action against the appropriate entity. If it does appear that a cause of action against a municipality or a county is appropriate, please remember the nonclaim statute which requires that you file a written sworn statement of claim with the municipality within six (6) months of the accident or with the county within twelve (12) months of the accident. If the sworn statement of claim is not filed within the appropriate time period, the client will be barred from filing suit even though there is a two (2) year statute of limitations. Hence it is important that you quickly determine whether or not there may be a claim against a municipality or a county. Furthermore, if for any reason you believe there may be a claim against a municipality or county, I strongly recommend that you file the written sworn statement of claim within the specified time frame. It is better to be safe than sorry.

If your client was working for his or her employer and injured in a motor vehicle accident, he or she will be entitled to workers' compensation benefits assuming proper notice is given to the employer. Those benefits include reasonable and necessary medical care from healthcare providers authorized by the employer, the payment of workers' compensation indemnity benefits during the time that he or she is disabled from working, and, in cases of permanent disability, vocational re-training if necessary. Even assuming everything is being handled through your client's employer's workers' compensation carrier, the client/employee still has a viable cause of action against the at-fault driver and may also recover, if necessary, under his or her employer's underinsured motorist coverage and under his or her personal underinsured coverage. The basic thing to remember is that whatever you recover from the at-fault driver and/or your client's employer's underinsured motorist coverage is subject to subrogation by the workers' compensation carrier for all benefits it has paid to your client. However, it is this writer's belief that any monies recovered from your client's personal automobile liability underinsured motorist coverage cannot be reached by the comp carrier. At any rate, in determining whether or not to go after the at-fault driver and/or any underinsured motorist coverage, it must first be determined whether or not it will be financially worth the time and effort. After all, if you are simply recovering money so that you can pay back the comp carrier, the only real benefit is to the attorney, not the client (i.e., the attorney is locked into a 15% contingency fee by law regarding comp claims with the standard contingency fee being somewhere between 33 1/3% and 40% on your typical motor vehicle accident claim). Therefore, I would take a long hard look at a case like this before going after every source of recovery.