DRI Congratulates John Willardson

Date: 6/29/2016

http://www.dri.org/Article/175

CHICAGO – DRI is pleased to announce that member, John Willardson, The Willardson Law Firm, located in Wilkesboro, North Carolina, has been awarded the North Carolina Association of Defense Attorneys (NCADA) J. Robert Elster Award for Professional Excellence.  Willardson has served in many leadership roles at DRI and has been a member since 1984.

The J. Robert Elster Award is given to members of the NCADA who exemplify the highest standards of professionalism, integrity and ethics and conduct themselves in a civil, courteous manner with all persons.  The awardee must also exemplify sustained, excellent services to individual and corporate defendants and to the community.

“John Willardson exemplifies the best our profession has to offer society; superior legal skills, high character, community involvement, and gentlemanly dealings with everyone.  It was evident that his North Carolina colleagues hold him in the highest esteem, and are very proud of him,” said John Cuttino, DRI President-Elect.

Willardson has a strong history of personal and professional service. He served from 2004–2007, as the North Carolina State Representative for DRI.  From 2007–2010, he served on the DRI Board of Directors as Mid-Atlantic Regional Director over North Carolina, South Carolina, Virginia, Maryland and Washington D.C. Willardson worked tirelessly on behalf of DRI and our 22,000 members.

“DRI celebrates John Willardson’s accomplishments personally and professionally.  His work, character and commitment to the defense bar are extraordinary.  John is most deserving of this honor,” said John R. Kouris, DRI Executive Director.

Willardson is a native of Santa Monica, California, and has lived and practiced in Wilkesboro, North Carolina, for over 35 years after graduating from UNC-Chapel Hill, where he completed a double major in Spanish and political science.  He served in the United States Army before attending UNC Law School where he obtained his J.D. in 1972.

 

 

Why Won’t the Insurance Company Replace Your Car After an Accident

Why Won’t the Insurance Company Replace Your Car After An Accident


If you’ve recently been involved in an auto accident in North Carolina there are certain things of which you should be aware regarding your claim.  First, the property damage claim for your vehicle is separate from your bodily injury claim and is usually handled by two separate insurance adjusters. 
The property damage claim can generally be resolved faster than a claim for the injuries you sustained as a result of the car wreck.  Why is this?  Well, it’s pretty straightforward.  Almost immediately after the car crash, your vehicle is damaged.  The damages will not increase or decrease although the different valuations of that damage may differ slightly. The car will not slowly repair itself and won’t progressively get worse.  The damage done to the car in the accident is it.  A bodily injury claim is different because requires a longer period of time to appropriately assess and treat the harm caused to your body.

The insurance company will determine a value of the damage to your vehicle after conducting an investigation into the post-accident status of the vehicle. The insurance company will weigh the extent of the property damage against the value of your vehicle prior to the accident.  Thus, putting you back in the position you were in before their insured damaged your vehicle.  The insurance company will decide if the cost to put your car back in its pre-accident condition is greater than completely replacing the car altogether it will render the car a total loss. 

This is a source of contention between the insurance adjuster and the car owner.  The insurance company is convinced that you can find the exact same car you had before the wreck for a fraction of what you could in reality.  So, how do you dispute this?  Well, there are a number of ways.  The process will be comparable to saving the princess on the original Nintendo with only one Mario life remaining.  Nonetheless, it can at least be attempted.
Are there ways to counteract this loss for personal property?  Absolutely, it requires planning and common sense, but it can be done.  One way is to frequently get the value of your vehicle from your own insurance company.  I don’t mean the asking or lowest accepted offer values if you were to sell the vehicle.  Or even the KBB or consumer report values. Especially not the remaining balance you owe on the vehicle.  These values may be determinative in an insurer’s assessment of value, but there is a “value” that insurance companies may place on your vehicle.

Because most automobiles are generally considered depreciable assets, as time passes and the vehicle use increases, these are depreciated from the value of the starting asset value as an expense. When you purchase a new vehicle you would obviously want to insure the replacement value of the vehicle.  A year after owning the vehicle the value of the car is depreciated—whether you agree or not—it’s true.  If you don’t check with your insurance company and adjust the policy amount to correlate to a change in value you could pay higher premiums for a higher policy limit that you’ll never use.  The insurance company won’t tell you this.  Why would they?  Pay your premiums on the car that was worth $10,000 when you got it.  Keep paying the premiums even though three years into the policy, the car is now only worth $5000.  You get in an auto accident after paying the premiums on a $10,000 car when in reality your premium should have decreased—assuming your driving record remains constant. 

Use the difference in the premiums the insurance company prefers that you pay and what you should really be paying to save for a replacement car.  Or use the difference to pay down the balance owed on the car faster.  This will save you less in interest and may help reduce the likelihood of an unfunded liability in the event your vehicle is considered a “total loss.”  If you still owe more on your car than what it’s worth—the insurance company still only has to put you in the position you were in before the incident.  If that means paying the lienholder some but not all of the balance you owe on the vehicle, they don’t care. 

Is that harsh?  Well, their insured driver only caused the damage.  The fact that you may have a car that is worth less than what you owe on it doesn’t matter a lick to the insurance company.  These are a few ways to keep things in check when it comes to property damage after an auto accident.   Call us today at 336-838-5129 www.willardsonlaw.com to discuss possible options .

Steps to Take After An Automobile Accident in NC

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Steps to Take After An Automobile Accident in NC

If the accident in which you were involved resulted in injuries, all those who were injured should immediately obtain medical care and should consult an attorney who is experienced in handling injury cases. Please call Attorney John S. Willardson today 336-838-5129 concerning your case for a free consultation.

If only property damage to your vehicle or its contents was involved or you had only very minor injuries, this kit answers most of the common questions that may arise regarding how to resolve your claim.

When only property damage or minor injury occurs, a lawsuit with attorney involvement generally is not practical.  Even a lawsuit which you handle without a lawyer’s assistance may not be a reasonable option.  When your primary objective is to get your car repaired as quickly as possible, these delays can be counterproductive.  In addition, if an insurance company is on the other side, it will have an attorney.  Unless you also employ an attorney, you will be at a disadvantage.  This kit focuses primarily on negotiating a settlement rather than hiring an attorney.

AT THE ACCIDENT SCENE

Should I call the police?

North Carolina law requires that a driver involved in a collision contact a law enforcement agency by the quickest means possible if there is: (1) injury to any person; (2) death to any person; or (3) total property damage of $500 or more.  Failure to do so is a misdemeanor.  It does not take much damage at current repair costs to exceed the statutory minimum, so it is always a good idea to contact the police.

In some cases, the parties may decide not to involve the police.  Although this may at first appear to be less time consuming, the police provide a valuable investigatory resource.  The police prepare a report that will include information from the accident scene, such as point of impact and length of skid marks, which may help to establish which driver was at fault.  In cases where the police are not called, especially where there are no witnesses, the other driver or the insurance company may be more likely to later deny fault for the accident.

What should I do until the police arrive?

Your first responsibility is to find out if anyone was injured in the accident and make sure medical personnel are called if needed.

You should exchange information required by law to be given by each of the parties involved in the accident.  This includes the name, address and telephone number of the driver of each vehicle as well as each driver’s license number, license plate, automobile insurance company and the appropriate policy number.  If witnesses do not wish to remain on the scene until the police arrive, obtain their names, addresses, and home and work telephone numbers.

Should I move my car before the police arrive?

Although it is better not to move your car after an accident (this makes the investigation easier), North Carolina law prohibits stranded vehicles upon the main traveled portion of the road except when they are disabled.  There, if you can, you may have to move your car to allow traffic to continue.  If you cannot move your car, then take reasonable precautions to warn others of your location.  If you move your car, try to remember its exact location.  Provide this information to the investigating officer.  Before moving any cars, it is wise to mark on the on the roadway the position of each of the tires on all cars involved in the accident.  Carry a piece of chalk in your glove box for this purpose.  If you have no chalk, photograph the location of vehicles from every angle.

What will the police do when they arrive?

The police are required to prepare an accident report.  To complete the report, the investigating officer will interview the parties involved in the accident as well as other witnesses.  The investigating officer will gather appropriate physical evidence (location at point of impact, length of skid marks, whether each vehicle’s equipment was functioning properly, etc.) and the officer will issue citations as the circumstances indicate.

Even if citations are not issued, the officer will likely note circumstances contributing to the cause of the collision on the report.  The police will also require each party to prepare an “exchange card” which has the information that you may already have obtained from the other party regarding his or her identity and automobile insurance information (see inside back cover).

You should obtain the name and badgenumber of the investigating officer and determine which agency he or she works for (i.e. city police department, county sheriff’s department, NC Highway Patrol, etc.)

What happens after the investigation is completed?

If your vehicle is drivable, you will be permitted to drive it away.  If not, you can make arrangements to have the vehicle towed, or the police will make arrangements.  Be certain to get the name and address of the towing company and the location where your vehicle will be stored.  If the police tow the vehicle, you may want to make arrangements as soon as possible to remove it to your own property because you generally will be charged a daily storage fee while your car is on the storage lot.  Be sure to check your own insurance policy; some policies will reimburse you for certain towing charges. 

IMMEDIATELY AFTER THE ACCIDENT

Can I get a copy of the accident report?

At the accident scene, the investigating officer will give you the number of the police report (it should be listed on the exchange card).  Most accident reports are completed and available three to four days after the accident.  You can obtain a copy from the internet in some locations or for a nominal fee at the Division of Motor Vehicles.  You can ask for the report by its number, or by simply giving the names of the drivers and the date and location of the accident.

You should get a copy as soon as possible.  It will provide valuable information that may help you deal with the insurance company or with the other driver.

What happens if traffic citations are issued?

In most automobile accidents, the investigating officer will determine whether North Carolina law has been violated and indicate all violations on the accident report.  The officer might also issue a ticket to one or more of the parties involved.  For more serious violations of North Carolina law (for example, DWI and reckless driving), a criminal arrest may be made.  In most cases, however, a ticket is considered an infraction and is handled in the District Court.  As a practical matter, if the investigating officer indicates a violation on your part, you’ll have a difficult time convincing the other driver’s insurance company to pay your property damages.

If you receive a ticket, the date and time for you to appear will be printed on it.  At that time, you can admit the violations and pay the fine or plead not guilty, present evidence and argue that the ticket was improperly issued.  You have the right to retain an attorney for these matters.  For the more serious criminal matters or if someone was injured in the accident, it is especially wise to consult an attorney.

If your ticket is for an infraction, a plea of “responsible” can be used against you in a later civil trial for damages.  However, a finding of responsibility at trial cannot be used against you in a later civil trial for damages.

Your insurance company is required to issue you a document proving financial responsibility which shows that you have the insurance coverage required by North Carolina law.  If you do not have this document at the time of the accident, you may be given a citation.  Prior to the hearing on that ticket, you can present evidence to the court that you had insurance at the time of the accident and that citation will usually be dismissed.

If you did not have insurance at the time of the accident, you are subject to a possible fine and suspension of your driver’s license and auto registration.

What should I do after the investigation is completed?

Promptly notify your insurance company of the accident.  If your car is still drivable, you should obtain a repair estimate from a reputable body shop.  You also should take photographs which show all the damage to the vehicle from several angles.  If you believe the car is a total loss, you should make some effort to determine the pre-accident value of the car.  You may do this by reviewing the newspaper classified ads to determine the selling prices of similar cars.  You should also check with used car dealers in your area to determine the cost of similar cars and consult the National Automobile Dealers’ Association (NADA) Price Guide Book (www.nada.com) and other valuation services online at the local library or at your bank.

Finally, you should prepare a written statement of the circumstances surrounding the accident while those facts are fresh in your mind.  Maintain a file folder in which you keep all pertinent papers (police report, photographs, diagrams, estimates, correspondence from insurance companies, etc.)

Should I get written statements from the witnesses?

It generally is advisable to obtain a statement from witnesses to the accident.  These statements should be written, dated and signed.  This should be done as soon after the accident as possible, while the accident is still fresh in their minds.  These statements can be extremely valuable if the other driver or that driver’s insurance company later claims the accident was all or partially your fault.  Be aware that if the witness statements indicate some fault on your part, the other side may eventually use them against you.

The investigating officer usually will list witnesses on the police report, and he or she also may obtain statements from them.  Statements may be included in the report, if any are obtained.

What happens when more than two vehicles are involved?

Multiple vehicle accidents can become very complex.  If you believe two or more other parties were at fault for the accident, you should contact each party, or the insurance company for each.  In North Carolina, both parties may be responsible for all of your damages.

If you think the accident was partially or entirely your fault, you should contat your own insurance company.  North Carolina is known as a “contributory negligence” state.  This means that if you are partially at fault in the accident you are not entitled to recovery against the other driver.  Instead, you need to make a claim under the collision coverage of your own policy.  In essence, you can only recover from the other driver (or under your uninsured motorist coverage) if you were not in any way at fault.

What should I do if the other party does not have insurance?

All vehicles in North Carolina are required to have minimum levels of liability insurance.  Unfortunately, some drivers are not in compliance with the law.  If the other party was not insured, you can make a claim under your uninsured motorist coverage with your own insurance company.  It will apply up to the limit of the coverage it affords.

If you rejected uninsured motorist coverage, you can make a claim under the collision of your own policy, assuming the damages exceed your deductible.  If you do not have any insurance available, however, your only option will be to attempt to recover your damages from the driver or owner of the car that caused the accident.

If you want to have your car repaired immediately, you will most likely have to pay the cost yourself, and then try to recover that expense from the other driver or his insurance company.  You can start that process by sending the other driver a letter, along with copies of the estimate of repair bulls, and ask for payment for the cost of the repairs.  It may be necessary to work out a payment schedule if the other person is not able to pay all the damages at once.

If the person responsible for the accident refuses to pay your damages, your only recourse may be to file a civil lawsuit.

Am I entitled to a rental car?

As a basic rule, if the other driver caused the accident, and your car is not safe to operate or is undergoing repairs, you are entitled to a rental car or compensation for the loss of use of your car while it is inoperable.  Whether the other driver’s insurance company will assist in providing you with a rental car varies.

Some insurance companies provide a rental car for your use until your vehicle is repaired.  In that case, you generally will not have to pay any money out of your pocket.  Other insurance companies require that you rent a car on your own and the company will reimburse you at a fixed daily rate.  This rate usually is fairly low, so you should shop around to get the best rental rate.

Some insurance companies compensate you on a weekly basis while others will not reimburse you until your entire claim is settled.

Although you are entitled to a car that is comparable to the car that was damaged, as a practical matter, most insurance companies willingly compensate you only for basic transportation at a fairly low rate.  If you rent a more expensive car and pay for the difference out of your own pocket, it may be difficult for you to obtain the difference from the insurance company without a lawsuit.

The rental car will be available to you until your car either is repaired, or the insurance company “totals” your car (see paragraph 24).  You are entitled to a rental car or loss of use compensation even if you have other transportation available to you. 

Some car rental companies have “replacement car” rates that are lower than regular rental charges.  Be sure the rental company knows you are temporarily replacing a damaged vehicle.

If you are unable to make appropriate arrangements with the other driver’s insurance company, you should check your own policy to see whether or not you have coverage to provide a rental vehicle.

 

Finally, be aware that most insurance companies will not pay the “Collision Damage Coverage” expense that the rental car company might charge.  When renting a car, consult your insurance agent to determine if your own policy includes collision coverage for the rental car.  If it does you can provide your policy information and waive the collision damage coverage.

GETTING YOUR CAR REPAIRED

What damages am I entitled to?

Generally, where repairs are appropriate, the amount you can collect from the other driver or his insurance company is the difference in the fair market value before the wreck and the fair market value after the wreck.  The actual cost of repairs or estimate of repairs is evidence of the damages.

Even though your car is repaired, it might have a reduced value known as diminished value.  This is especially true if the repair cost is 25 percent or more of the value of your car at the time of the accident.  Determining a fair amount for diminished value is difficult.  It has been our experience that if the vehicle is not more than two years old you can expect to claim depreciation and receive an additional 20 percent to 30 percent over the cost of repairs to over the reduced value of your vehicle.  In any case, especially if your car is older than two years, we suggest that you contact an appraiser for an opinion.  Ask for diminished value before you conclude your property damage claim.

If I am not at fault, which insurance company will repair my car?

If it is clear that the other party was at fault in causing the accident, and if you have collision coverage on your automobile policy, you have two choices: You can insist that the other driver’s insurance company repair the car or you can have the repairs paid for by your insurance company under your policy.

When the other driver’s insurance company pays to repair my car…

If you do not have collision coverage, or if you are unwilling to pay the deductible, you should seek to have the driver who was at fault or his insurance company pay your damages.  That insurance company may be cooperative and satisfy you that the repairs will be done in a prompt and satisfactory manner.

If your car is drivable, the other party’s insurance company may want you to go to a drive-in claims office for an appraisal.  You should make arrangements with the adjuster assigned to your claim for an appropriate time.  If the car is not drivable you should notify the adjuster of the location of the car so it can be viewed.  In some cases, arrangements will have to be made to have the car towed to a dealer for an estimate.  Also, be sure to let the company know if the car is being stored and the storage charges.

When I use my own collision coverage to repair my car…

If you cannot come to a speedy agreement with the other driver’s insurance company regarding the responsibility for the accident and the amount of the damages, this will delay your car being repaired.  In this case, you should have your own insurance company pay for the repairs.  When your company repairs the vehicle, it will cover the entire repair cost (excluding your deductible) regardless of who caused the accident.

If your insurance company pays for the repairs it may attempt to collect the amount it paid from the other driver’s insurance company providing that driver was a fault.  If your company is successful in doing this, it should also collect the deductible that you have previously paid, and it should be returned to you.  You should request that your company do this for you.

In some cases, you may find it easier to work with your own insurance company which may be more willing to make repairs to your satisfaction than the other party’s company.  Obviously, your own insurance company would like to keep you as a customer, whereas the other insurance company has no similar incentive.

If I am partly at fault, which insurance company will repair my car?

If you are even partially at fault, the other driver’s insurance company has a legal defense under North Carolina law.  Therefore, you are left with making a claim under your own collision coverage, if that is available under your policy.

Will my insurance rates be affected if I make a claim under my own insurance policy?

If the accident clearly was not your fault, your premium should remain unaffected by any claim under your own collision coverage provided your insurance company receives payment from the at-fault parties insurance.  If your company attempts to increase your premium as a result of an accident that was not your fault, you should discuss this with your insurance agent.  If you receive no satisfaction contact the NC Insurance Department 1-800-662-7777.  If the accident was partially your fault, expect your company to increase your premium.

Can I select a body shop to make the repairs on my car?

The insurance company (yours or the other party’s) must compensate you for the amount reasonably necessary to repair your car.  Often insurance companies have arrangements with certain repair shops for reduced rates, and they will ask that you have your car repaired by that shop.  Although you have the legal right to select the shop where your car is to be repaired, the insurance company is required only to compensate you for the reasonable repair cost (which may be less than your own shop of choice would charge).  You may be responsible for the difference if the additional costs are unreasonable.

The choice of body shops is a matter subject to negotiation with the insurance company.  However, it is against the law for the insurance company to “steer” you to a bpdy shop.  If the estimate given by the insurance company’s shop is far lower than the estimate you received from the repair shop you select, you should have your repair shop discuss the matter with the insurance adjuster.  Alternatively, ask your repairman to review the insurance company’s estimate and point out to you why that estimate is unreasonably low.  You should take this information to the insurance company to see if you can work out a compromise.

If no agreement can be reached, you have the choice of either accepting the company’s repair estimate or paying your repair shop to do the work and then file a lawsuit against the responsible party (or your insurance company, if you are making a claim under your own collision coverage) for the cost of repairs.  This is a difficult matter because the insurance company may hire an attorney to contest your lawsuit and the cost of resolving the case in court may exceed what you reasonably can expect to receive.

Who is responsible for faulty repairs?

 If you discover that the repairs have not been completed satisfactorily, discuss this immediately with the insurance company and the repair shop.  If the shop is unwilling to make further repairs that you think are necessary, or if the company refuses to authorize further repairs and the repair shop claims that the repairs were satisfactory both in terms of the quality of the parts used and the workmanship, you have limited options.

Generally, faulty workmanship is the responsibility of the repair or body shop, as it would be if you were having repair work performed in the absence of insurance.  If satisfactory results cannot be worked out, you may need to take your vehicle to another body shop to correct the problems.  This would give rise to a claim against the original body shop (and possibly the insurance company) and may require a lawsuit.

Know your body shop’s reputation before you commit to repairs.  Always go to an independent auto body shop.

Can I insist on a new or dealer manufactured parts?

 

Repair shops, often at the direction of the insurance companies, may attempt to repair the car with used parts or with parts manufactured by someone other than the original manufacturer of your car.

For example, if your car is a Chevrolet, the repair shop may attempt to either install used parts or parts which are not manufactured by General Motors.  If you are having the repairs performed under the collision coverage of your own policy, be sure to check the policy to see what it says with regard to the type of parts that can be used for the repairs.  You can negotiate with your insurance company at this point.

If the other party’s insurance company is paying for the repairs, you generally are in a better position to insist on new or manufacturer quality parts if you can show there is any potential defect in the parts that the repair shop or insurance company wants to use.  If the parts proposed are of demonstrably less quality (for example, they are not treated for rusting, or are not as strong as the parts that were in your original car), you have a good argument that new or higher quality parts must be used.

Used parts in good condition should be acceptable since the parts in your car which are being replaced also were used at the time of the accident.  Once again, this comes down to a point of negotiation with the insurance company.  Unfortunately, if the insurance company refuses to negotiate and you feel strongly about the matter, your only recourse may be to file a civil suit.

Do I have to sign a release?

At the time you pick up your car from the shop where repairs were made, you might be required to sign a release giving up any future claims against the responsible party and his insurance company for the property damage to your car.  You should ask the repair shop to allow you to inspect and test drive the car before signing the release to make sure there are no apparent defects or problems.

 Be sure to read the release form you sign and make sure it is limited solely to property damage and does not give up any other claims you might have, including those for bodily injuries and for other accident.

Also examine the check you receive to make sure it is noted that this payment is for property damage only.  You should not endorse and negotiate a check that indicates payment of all claims or payment in full.

What if my car is “totaled”?

In some instances, especially with older cars, the cost of repair will exceed the fair market value of your car.  Where a car is considered to be destroyed and not reasonably capable of repair, you are entitled to the difference between the vehicle’s value before the accident and its salvage value if any, after the accident.

In North Carolina a vehicle is totaled if the cost of repairs exceeds (including consequential costs) 75 percent of the fair market retail value of the vehicle.  The fair market retail value before the accident can be determined in the NADA Pricing Guide Book or at mediation.

If your car is totaled, the insurance company, as a condition of paying you the value of your car, may require that the car and the title be turned over to the company.

Alternatively, the company will establish a “salvage value” for the car and you may be able to negotiate with the insurance company to receive the fair market value of the car less the salvage value.  In this case you keep the car.  However, the car cannot be driven until you have had it repaired, inspected, and received a “Salvage Title” from the DMV.

If you disagree with the figure the insurance company uses regarding the fair market value of your automobile, you can negotiate with the adjuster using information from the sources mentioned previously.  Unfortunately, most insurance companies use their own service to estimate value, and they are not always willing to give you more than that service indicates the automobile is worth.

If you have made recent and major improvements to the vehicle that are not considered ordinary maintenance, you should provide copies of these invoices to the insurance company’s representative.  This is particularly true of older vehicles.

You should also ask for reimbursement for taxes, title transfer and registration fees when negotiating.

If they are offering you substantially less than what you believe your car is worth, your only option may be to file a civil lawsuit.

BODILY INJURIES

What is I later find I was injured in the accident?

If you have signed a general release form which is not limited to property damage, any future injuries might be your own responsibility, even if the other driver was at fault.  The insurance company has no right to require you to give up any potential bodily injury claims in order to settle your property damage claim.  Be sure that any release you sign is limited to property damage only.  If you discover at any time after an accident that you were injured by the accident, promptly contact an attorney who is experienced in handling accidental injury claims.

Who will pay the medical bills?

Sometimes when a person is injured in an automobile accident, the injuries do not become apparent until weeks or even months after the accident. If this occurs, seek medical attention at once.  If you do have accident-related injuries, you should consult an attorney who is experienced in handling accidental injury cases.  Most attorneys who practice personal injury law are willing to consult with you about accident-related injuries for free.  If you retain them to represent you, they will generally work on a contingency basis, which means the lawyer will earn a fee only if the case is successful.

 

A variety of sources may be available from which you may recover medical expenses.  First, if you have a medical insurance plan (through work or otherwise), that coverage will, in most instances, apply.  Additionally, a standard coverage which is available on most automobile policies is medical payments coverage. If you have medical payments coverage under your own policy, it generally entitles you to have your medical bills reimbursed up to the specified policy limits for you or anyone in your car who is injured in an accident.  These payments are made regardless of who is at fault.

If the other driver was at fault but was uninsured, you can proceed under your own uninsured motorist coverage to have your insurance company handle your accident-related medical bills.  If the other party has liability insurance you also can contact that insurance company for payment. 

If you were on your job at the time of the accident, contact your employer about filing a workers’ compensation claim.

In some instances, an insurance company will require you to pay your medical bills and then it will reimburse you.  There always is the possibility that the insurance company will deny that the injury is accident-related, depending on the amount of time which elapsed between the accident and your first treatment by a doctor.  For this reason, it is critical that you have any injuries which appear to be accident-related examined by a doctor as soon as possible after you experience symptoms.

Landlord & Tenant Law in North Carolina Generally

Attorney John Willardson has enjoyed a generalized practice of law for over 40+ years. Please feel free to call the Willardson Law Firm: 336-838-5129 for a free consultation.

Multiple  families and individuals today are choosing to rent over owning their own home. Renting can provide certain benefits over buying that many find attractive, including minimal maintenance, no property taxes or home owners’ insurance, and less commitment. However, when disputes between a landlord and tenant arise, the living situation in a rental home can become unbearable.

Knowing your rights as a tenant or landlord may help to resolve disputes or avoid them all together. The laws governing the relationship between a landlord and a tenant are complex and come from several sources. Those sources include the law of contracts, the law of negligence, the North Carolina General Statutes, local health, safety and building codes, federal laws and regulations governing subsidized rental housing, and the Constitutions of the United States and the State of North Carolina. Outlined below are the legal responsibilities of a landlord and of a tenant.

A landlord must:
•    Make any reasonable repairs needed to keep your abode place fit and safe.
•    Keep the plumbing, heating, sanitary and electrical equipment in good and safe working order, and provide a smoke alarm.
•    If the landlord provides appliances, like a stove or a refrigerator, he or she must fix them if they break.
•    Keep the stairs, sidewalks and areas that are used by everyone in the building in safe condition.
•    Obey local housing codes. Many towns and counties have passed laws that say what a fit and safe place should have, such as window screens, hot and cold water, door locks and more. These laws are called the “Housing Code.” To find out if your town or county has a Housing Code and what the Code says, call your town hall or county inspections office.
•    Inform you if he or she sells the property.
•    Tell you in writing of any complaints about the way you are treating the property

A tenant must:


•    Pay your rent on time.


•    Keep your place as clean and safe as you can. Get rid of garbage in a clean and safe way. Keep the plumbing (sinks, toilet, bathtub) clean.


•    Not damage your place or let anyone visiting you damage your place. Remember: If your guest damages your place, you may be responsible. Your landlord may not have to fix damages caused by you or your guest. Your landlord may bill you for the repairs.
•    Give your landlord notice if you decide to move out at the end of your lease. If you have a written lease, usually the amount of notice required is stated in the lease. If not, North Carolina law states that proper notice is:


– 2 days if you pay rent every week
-7 days if you pay rent every month
– 1 month if the lease is year-to-year
– 30 days if you own a mobile home and rent the lot


Notice does not have to be in writing, but it is always better to write the landlord a letter, date the letter, include the date you plan to move and keep a copy of the letter.

Remember:  A tenant can be evicted for the following reasons:
•    Non-payment of rent- The landlord must demand the rent and wait 10 days before filing a complaint against you at the courthouse. To “demand” the rent, the landlord must either ask you for the rent or write you a letter about the rent and explain that you will be evicted unless you pay it.


•    Lease termination- If you stay after the rental period ends, either because the written lease ended or your landlord told you to move out, and the landlord does not continue to accept your rent, the court may evict you for “holding over.” This notice does not have to be in writing. If the landlord can prove that the lease has been terminated, you can be evicted.


•    Breach of the lease- Your landlord may try to prove that you broke (“breached”) the lease by causing damage, disturbing the neighbors or other actions. The landlord must prove the case with evidence. You will have a chance to present witnesses and evidence to show that the landlord’s claims are false or are not a violation of the lease agreement. The landlord does not have to give you notice before starting the eviction process, so long as the landlord is claiming that you breached the lease. However, the landlord must have a certain clause in the lease that allows him or her to evict you before your lease ends. It is called a forfeiture clause.

If you feel as if your rights as a landlord or tenant have been violated, or if you have legal concerns about any area of law in which we practice, contact us at 336-838-5129 and ask for a free consultation.

Power of Attorney: Durable and Healthcare P.O.A.s

 A person may have power of attorney in two ways in North Carolina. They may deal with property and financial matters or with health care decision-making, but these two types of Powers of Attorney are typically found in two separate legal documents. This section deals with Financial/Property Powers of Attorney. Please see our Health Care Powers of Attorney page for additional information.

In general, a Power of Attorney is a legal document that allows a person (called the “principal”) to appoint another person (called the “attorney-in-fact” or “agent”) to act on behalf of the principal. The laws governing this relationship can be nuanced and complex, but in general the agent is only authorized to act in the principal’s best interest and may only perform actions that are specifically listed in the Power of Attorney document.

The powers that can be listed in the Power of Attorney can be limited to a specific act, for example, appearing for the principal at a real estate closing. Or they can be broad and sweeping, allowing the agent to do virtually anything the principal himself could do. The Powers of Attorney used in estate planning are usually of the second type. This is because the main purpose of the Power of Attorney is to name an agent who can manage the principal’s property in the event the principal himself becomes incapacitated. The agent will be able to collect debts, pay bills, and otherwise preserve and manage the principal’s assets while the principal is unable to do so.

Because planning for incapacity is the main purpose of a Power of Attorney in estate planning, the Power of Attorney must be “Durable”. By default, a Power of Attorney becomes void at the moment the principal becomes incapacitated. Obviously, a void Power of Attorney would be useless for estate planning. A Durable Power of Attorney is one that specifically states that it does not become void when the principal becomes incapacitated.

Some Durable Powers of Attorney are called “Springing” Powers of Attorney. A Springing Power of Attorney is one that is not only durable, but actually “springs” into effectiveness when the principal becomes incapacitated. A Springing Power of Attorney can not be used by the agent until the principal actually becomes incapacitated. The appeal of a Springing Power of Attorney is obvious in the estate planning context. At first glance, most people would rather not grant immediate access to such sweeping powers as are found in a Durable Power of Attorney. They would prefer those powers to become effective only when needed.

However, there is a major potential drawback to the Springing Power of Attorney. In order for the Power to become effective, the principal’s doctors must verify in writing that the principal is incapacitated. So what happens if for some reason the doctor won’t sign the paperwork? The Power of Attorney is useless and nobody will have authority to manage the principal’s property. The principal’s family will have to go through the court guardianship process instead, a much costlier and more burdensome process. Most clients are better off using a Durable Power of Attorney that goes into effect immediately upon signing it. If you don’t trust your agent to have that power immediately, you probably shouldn’t be appointing that person as your agent at all.

One important thing to remember about using a Durable Power of Attorney is this: if the principal is incapacitated, the Power of Attorney must be recorded at the Register of Deeds office in the principal’s county of residence before it is used. The Power of Attorney must also be recorded if the agent engages in a real estate transaction on behalf of the principal.

North Carolina DWI Law

Attorney John S. Willardson is has considerable experience handling DUI defense cases. Please call today 336-838-5129 for a free consultation.

North Carolina DWI Sentencing Guide

There is a wide range of potential sentences/penalties that an individual can face, if convicted of a DWI (driving while impaired/intoxicated) in Raleigh or elsewhere in North Carolina. At the low end, the best case scenario is generally a sentence of 24 hours of community service, a fine up to $200 (plus court costs), and likely a period of probation, including a requirement that that defendant a substance abuse assessment and corresponding education or treatment, prior to restoration of the individual’s driver’s license. The defendant’s driver’s license will be suspended for a year, but with the possibility of obtaining a limited driving privilege for work and school during that period.

DWI sentencing in NC is structured into six levels. From most severe to least severe, the DWI sentencing levels are: Aggravated Level One, Level One, Level Two, Level Three, Level Four, and Level Five. The DWI sentencing law is outlined in the North Carolina General Statutes (N.C.G.S.) § 20-179.  Following a conviction for a DWI, the judge will hold a sentencing hearing to determine whether there are aggravating or mitigating factors present in the case, in order to determine the appropriate sentencing level.  At that hearing, the State bears the burden of proving the existence of any aggravating factors beyond a reasonable doubt, and the defendant bears the burden of proving the existence of any mitigating factors by a preponderance of the evidence (a significantly lower standard).

The determination of the appropriate punishment level by the judge involves a balancing of grossly aggravating factors, aggravating factors, and mitigating factors.  A listing of those factors is included below, and following the list is an outline of the six DWI sentencing levels with a description of the criteria for determining placement in each, based on the balancing of aggravating and mitigating factors.

DWI Sentencing Factors

Grossly Aggravating Factors

The four factors below are the factors classified as “grossly aggravating”:

(1) A prior conviction for an offense involving impaired driving if:

  1. The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or
  2. The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or
  3. The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20‑38.7.

NOTE: Each prior conviction is a separate grossly aggravating factor.

(2) Driving by the defendant at the time of the offense while his or her driver’s license was revoked for impaired driving.

(3) Serious injury to another person caused by the defendant’s impaired driving at the time of the offense.

(4) Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

Aggravating Factors

The eight specific factors below, plus the catch-all, are classified as “aggravating” for DWI sentencing purposes:

(1) Gross impairment of the defendant’s faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person’s alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

(2) Especially reckless or dangerous driving.

(3) Negligent driving that led to a reportable accident.

(4) Driving by the defendant while his driver’s license was revoked.

(5) Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20‑16 or for which the convicted person’s license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.

(6) Conviction under G.S. 20‑141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.

(7) Conviction under G.S. 20‑141 of speeding by the defendant by at least 30 miles per hour over the legal limit.

(8) Passing a stopped school bus in violation of G.S. 20‑217.

(9) Any other factor that aggravates the seriousness of the offense.

NOTE: Except for the factor in (5), the conduct constituting the aggravating factor must have occurred during the same incident as the impaired driving offense.

Mitigating Factors

The seven specific factors below, plus the catch-all, are classified as “mitigating” for DWI sentencing purposes:

(1) Slight impairment of the defendant’s faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.

(2) Slight impairment of the defendant’s faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.

(3) Driving at the time of the offense that was safe and lawful except for the impairment of the defendant’s faculties.

(4) A safe driving record, with the defendant’s having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20‑16 or for which the person’s license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.

(5) Impairment of the defendant’s faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.

(6) The defendant’s voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.

(6a) Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.

(7) Any other factor that mitigates the seriousness of the offense.

DWI Punishment Levels

Aggravated Level One DWI Punishment: N.C.G.S. § 20-179(f3)

  • Imposed if three or more grossly aggravating factors are present
  • Fine: Up to $10,000
  • Jail: Minimum of 12 months, maximum of 36 months — with no eligibility for parole
    • But: Imprisonment term can be suspended only if a condition of special probation is imposed requiring a minimum term of imprisonment of at least 120 days
    • If probation is imposed, it must include the condition that the defendant abstain from alcohol for at least 120 days and undergo a substance abuse assessment and related treatment or education

Level One DWI Punishment: N.C.G.S. § 20-179(g)

  • Imposed if either:
    • The defendant was accompanied by a minor child (under 18) the time of the offense, or
    • Any two of the other grossly aggravating factors are present
  • Fine: Up to $4,000
  • Jail: Minimum of 30 days, maximum of 24 months
    • Imprisonment term may be suspended only if a condition of special probation is imposed including a minimum term of imprisonment of 30 days
    • BUT: A judge may reduce the minimum term of imprisonment required to a term of not less than 10 days if a condition of special probation is imposed to require that a defendant abstain from alcohol consumption and be monitored by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety, for a period of not less than 120 days. Pre-trial credit of up to 60 days may be given for alcohol monitoring prior to judgment, toward the 120-day period.
    • If probation is imposed:
      • Probation will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education
      • Probation may include a requirement of abstaining from alcohol, monitored by a continuous alcohol monitoring system, for anywhere between a minimum period of 30 days, up to the maximum of the term of probation

Level Two DWI Punishment: N.C.G.S. § 20-179(h)

  • Imposed if: 
    • No minor child (under 18) was present in the vehicle, and
    • Only one other grossly aggravating factor is present
  • Fine: Up to $2,000
  • Jail: Minimum of 7 days, maximum of 12 months
    • Imprisonment term may be suspended only if a condition of special probation is imposed including a minimum term of imprisonment of 7 days,
    • OR: If the individual is ordered to abstain from consuming alcohol for at least 90 consecutive days, as verified by a continuous alcohol monitoring system, of a type approved by the Division of Adult Correction of the Department of Public Safety. Up to 60 days of pretrial credit may be granted against the 90-day requirement, for voluntary alcohol monitoring prior to judgment.
    • BUT: If the defendant is subject to Level Two punishment as a result of a prior DWI conviction or driving on a license revoked as a result of a prior DWI, AND the conviction for a prior offense involving impaired driving occurred within five years before the date of the offense for which the defendant is being sentenced and the judge suspends all active terms of imprisonment and imposes abstention from alcohol as verified by a continuous alcohol monitory system, then the judge MUST also impose as an additional condition of special probation that the defendant must complete 240 hours of community service.
    • If probation is imposed:
      • Probation will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education
      • Probation may include a requirement of abstaining from alcohol, monitored by a continuous alcohol monitoring system, for anywhere between a minimum period of 30 days, up to the maximum of the term of probation, along with any other lawful conditions of probation the judge should choose to impose.

Level Three DWI Punishment: N.C.G.S. § 20-179(i)

  • Imposed if:
    • No grossly aggravating factors are present, and
    • Aggravating factors substantially outweigh any mitigating factors
  • Fine: Up to $1,000
  • Jail: Minimum of 72 hours, maximum of 6 months
    • Term of imprisonment may be suspended, but the suspended sentence must include:
      • Imprisonment for a term of at least 72 hours as a condition of special probation; OR
      • Community service for at least 72 hours; OR
      • Any combination of the above
  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

Level Four DWI Punishment: N.C.G.S. § 20-179(j)

  • Imposed if:
    • No aggravating or mitigating factors are present, or
    • Aggravating factors are substantially counterbalanced by any mitigating factors
  • Fine: Up to $500
  • Jail: Minimum of 48 hours, maximum of 120 days
    • Term of imprisonment may be suspended, but the suspended sentence must include:
      • Imprisonment for a term of at least 48 hours as a condition of special probation; OR
      • Community service for at least 48 hours; OR
      • Any combination of the above
  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

Level Five DWI Punishment: N.C.G.S. § 20-179(k)

  • Imposed if:
    • No aggravating or mitigating factors are present, or
    • Mitigating factors substantially outweigh any aggravating factors
  • Fine: Up to $200
  • Jail: Minimum of 24 hours, maximum of 120 days
    • Term of imprisonment may be suspended, but the suspended sentence must include:
      • Imprisonment for a term of at least 24 hours as a condition of special probation; OR
      • Community service for at least 24 hours; OR
      • Any combination of the above
  • If probation is imposed, it will include the requirement that the defendant undergo a substance abuse assessment and related treatment or education, along with any other lawful conditions of probation the judge should choose to impose.

Willardson is new town attorney for Wilkesboro

Willardson is new town attorney for Wilkesboro

 

John Willardson (to view the original article click: here)

Posted: Wednesday, June 4, 2014 2:00 pm | Updated: 2:01 pm, Wed Jun 4, 2014.

Willardson is new town attorney for WilkesboroCharles S. Williamsjournalpatriot | 0 comments

John Willardson was appointed Monday night by the Wilkesboro town council as the new town attorney.

Willardson succeeds Bill Gray, who submitted his resignation Monday after 26 years of service. Gray is stepping down because of health concerns.

In his letter to the board, Gray said, “Since 1988, it has been a true privilege to serve as the attorney for the Town of Wilkesboro. Without question, working with the town, its officials, and employees has been the joy of my legal career.”

Gray added, “I had hoped to continue in that capacity. Unfortunately, in the last year or so, I have been plagued with health issues. I thought that I would significantly recover and fully return to my activities. As of this date, that recovery has not come to fruition. Accordingly, I believe that under the current circumstances, it is best that I step aside as town attorney.”

Gray said that he would assist the town “in any way I can, including consulting with those who carry on my work. I would hope that you would consider me a resource for you as through my many years as town attorney, I have had the opportunity to acquire a wealth of information about Wilkesboro.

“It is with a heavy, but grateful and appreciative heart that I tender this letter,” he said. “Thank you for giving a hometown boy the opportunity of a lifetime.”

Mayor Mike Inscore, upon the approval of the council of Willardson’s contract, said “I am delighted that we have someone of the caliber of John who will provide legal counsel for the town. I’m happy that we were able to work through the contract negotiations with no problems.”

Willardson said, “I welcome the opportunity to serve the town in this capacity. Municipal corporations law is new to me, and I will have to get up to speed. But I look forward to the training, and to serving the town.

“Although I am honored to be offered this position, I am also humbled by the realization that I am following in the footsteps of my friend, Bill Gray, who has served this town with honor and distinction for over 26 years,” Willardson added. “It will be difficult to live up to the high standard that Bill has set, but I will welcome the challenge.”

The council members, who agreed unanimously to approve Willardson for the position, agreed to pay Willardson a monthly fee of $2,500 for standard legal services which will include attending regular council meetings and work sessions, as well as meetings of the board of adjustments and town planning board, reviewing and drafting legal contracts and documents, researching applicable North Carolina law and providing legal advice, as needed.

The town will pay Willardson a fee of $150 per hour for non-standard, extra work as needed.

The term of the initial contract is for one year.

Willardson’s practice, with Bill Lipscomb, is located on East Main Street in Wilkesboro.

Willardson, a resident of Wilkesboro, is a native of Santa Monica, Calif., and a graduate of UNC-Chapel Hill, where he completed a double major in Spanish and political science. He served in the Army before attending UNC Law School. He has practiced law for over 35 years.

He is immediate past president of the 23rd Judicial District bar, a member of the N.C. State Bar Council, a member of the Chief Justice’s Commission on Professionalism, a member of the N.C. Bar Association’s Dispute Resolution Council and the N.C. Bar Association’s Committee for the Independence of the Judiciary.

He is past president of the N.C. Association of Defense Attorneys, past president of the Wilkes County Bar Association and past president of the UNC Law Alumni Board of Directors.

Willardson has served on the boards of many local organizations, including the Wilkes Family YMCA, the North Wilkesboro Kiwanis Club, Wilkes ADAP, Hospice, Wilkes Art Gallery, Wilkes Babe Ruth League baseball and Wilkes Flying Club. In 2010 he was presented by the YMCA of Northwest North Carolina with its highest honor, the Red Triangle Award, for his leadership and volunteer service to the Wilkes Family YMCA.

Willardson and his wife, Ann, have one son, Jonathan Drew Willardson, also a UNC-CH graduate and a 2014 graduate of the Charlotte School of Law.

 

A Few Things to Consider Before Handwriting a Will in North Carolina



North Carolina recognizes the validity of handwritten wills. Under NC law, a handwritten will must satisfy the following requirements:

  • Written entirely in the handwriting of the testator (the will-maker);
  • Subscribed by the testator, or with his name written in or on the will in his own handwriting; and,
  • Found after the testator’s death among his valuable papers or effects or in a place of safekeeping.

Also, no special language or formatting is required. A handwritten will must simply satisfy the above three elements to be valid in NC. Thus, handwriting a will may appear an easy (and cheap) method for arranging to dispose of one’s possessions at death.

However, handwriting a will is only half of the story. A handwritten will must also be proven or probated after the death of the testator to take effect. In other words, the probate court must determine that the handwritten will is, in fact, valid under NC law. To make its assessment, the probate court will require testimonies from competent witnesses to corroborate (1) the handwriting of the testator and (2) the location of the will at the time of the testator’s death.

For this reason, handwritten wills may not end up being as easy (or cheap) as first believed. One of the estate planning goals for many families is to reduce the complexities of probate, if not avoid it entirely in the first place. Yet, probate is unavoidable in cases of handwritten wills, and arranging for proper witness testimonies to comply with NC law costs time and money.

Additionally, handwritten wills are not recognized in all states. Keep this in mind if you and your family move frequently. Your handwritten will that may be valid in NC may be invalid after you relocate.

For more information on wills and to discuss your specific circumstances, please contact our