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What are the steps involved in a personal injury lawsuit?

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What are the steps involved in a personal injury lawsuit?

If you ever find yourself involved in a personal injury dispute, it is common to be unsure of the steps. Most of us do not plan to get injured, but when something takes place that could put us in harms way it is important to react correctly. For example, you should first and foremost look to carry out an investigation into a personal injury lawsuit. This would mean taking the individual, or company, involved in your injury to court to receive compensation. For many, the idea of doing this can be quite daunting to say the least.

So, what are the most important factors involved? What are the main steps you should take in a West Virginia personal injury lawsuit?

In this guide we will quickly break down the main steps involved in taking litigation further. Hopefully, if you follow these steps, you are more likely to wind up with a positive solution and an end result that meets your expectations.

Getting started with a West Virginia personal injury lawsuit

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The first steps that participate in any personal injury claim will be pretty specific. If you are injured or hurt in any way then you, the plaintiff, can take legal action against the individual or enterprise involved. They will typically be regarded as the defendant moving forward in the legal case. Your aim will be to receive some form of compensation to cover for the injury or change in life quality caused by the incident.

While everywhere is different, including West Virginia, the typical steps to follow for such a claim are standard. For the most part, you will find that any personal injury legal claim that you make will tend to follow the upcoming steps towards overall progress.

Beginning your complaint

The first and most important step will be to actually make your complaint. This will mean filing your complaint with a legal body. You will need to pay some form of filing fee, which for the most part will be around $30. However, for more severe courts and in some more strict states, it could be as much as $300. 

Normally, a legal complaint in a personal injury lawsuit will contain the following details:

  • The identification of all parties involved, including yourself and the defendant(s)
  • The reason you have chosen this particular court – what legal basis do they have?
  • The claim that you are bringing to the court in the first place – the reason for your complaint
  • The facts of the matter including what happened, when it happened, and where it took place

Once the complaint has been filed with the courts, it will be sent to the defendant – this is known as being “served” and is the next step in making your complaint genuine and official. It must be served properly, otherwise the lawsuit can be dismissed due to a lack of proper process. 

You also must make sure that your filing is done, and the summoning is complete, before the statute of limitations has run out on the injury that has taken place. What happens next once you have made the first steps towards making your complaint legitimate? 

Answering the complaint and development of the facts

The next stage in any typical personal injury lawsuit will be to wait for the defendant to respond. They typically have around three weeks, or 21 days, from the serving to actually make a response to the courts. This is regarded as their “answer”, and the response they give will determine what happens next. 

It is most common that the other party will not admit guilt and will lay out the reasons why they feel they are not responsible for what happened to the plaintiff. In some cases, they might even return with a counterclaim of their own – this means they could actually accuse you of certain activities and actions. You would then be given a chance to answer back on said counterclaim, giving you an opportunity to fight back and state your case further.

Once the initial claims and processes above are in place, then the parties involved start to build up a list of what took place. This is typically when your personal injury lawsuit timeline will begin to move forward. You will need to accurately record everything that matters to the case. This includes what happened, why it happened, where it happened, and when the incident took place. The more corroborating information that can be collected at this time, the better.

These processes can be long and drawn out, and it can include:

  • Asking questions of the other party – specific lines of questioning that are put across by either plaintiff or defendant that must be answered under oath and in writing.
  • Asking the other party to provide documentation that can prove their assertions; this can include any relevant documents showing what took place. This often includes admissions/denials.
  • Depositions which can include one party being asked questions by an attorney. They must answer the questions faithfully and under oath and will be recorded word-for-word for posterity.
  • Physical examinations that could take a look to see the mental and/or physical condition of those involved; this is particularly common to assess damage in a personal injury lawsuit.

This is typically when a lawsuit gets serious, and it is vital that you are honest with both the other party and your legal support. The next phase of this process, then, will be taking the trial further and trying to assert any kind of negotiation before going to trial itself. How can you make sure the trial actually begins?

Setting the trial in motion

The next phase for any lawsuit like this would be to set the actual trial in motion. You do this by asking for a specific motion, which can include but are not limited to motions for summary judgments, for default judgments, for a change of venue for the dispute to take place, and a motion to compel. These are important to understand, and you should speak with your attorney to better understand what motions are worth moving forward with and trying to achieve.

At this phase, you might also be asked to look into a negotiation. For example, most parties will look to find an out-of-court settlement. This can include some form of compensation in exchange for not taking the process to court. This is usually conducted via written letters, offers, counteroffers, or discussions between the attorneys involved.

If no pre-court agreement can be found, it could be taken to a mediation. A neutral third party then looks over the settlement closely and determines the pros and cons of either case. However, a mediator can only make clear the reality of the case – they cannot force an agreement or a settlement. The other option is to go to an arbitrator, which is like a smaller version of the same trial. The cases are made by both parties, and the arbitrator decides who wins – if you agree to settle based on the arbitration, you likely cannot go any further in a courtroom.

Should none of the above negotiations come to any fruition, then the next step is to take the personal injury lawsuit to trial.

Going to trial

A trial will begin and tend to be around one day to seven days in length depending on the complexity of the case and the strength of argument on either end. In a civil trial, a judge (or a jury in some cases) will look closely at the information provided by both parties. They then decide whether or not the defendant is responsible for what took place to the plaintiff. 

A jury will be put in place, opening statements will be made, cross-examinations of both parties will take place, and closing arguments are then made. The jury is then given a chance to consider what they have heard, and then they draw up a verdict. 

The judgement is then put in place. At this phase, you will need to wait for the judgement to be made clear to both parties. If you have been decided as the victorious party, then the defendant must pay out the agreed settlement that has been made with you. What happens if you manage to succeed in your trial?

If you are successful

If you are not able to get a successful verdict the first time around, you have several things to consider. The first starting place for most would be to look at going down the route of an appeal. Either party can appeal, though, so you might find that your successful judgement is then appealed. This could mean that you need to wait for the appeal to be heard in a trial court.

The briefs and the records are then looked over by the appellate court. The court reviews everything to do with the case, and then will provide their view on whether or not a retrial could shake place. If they do, then this could mean that a new trial is started entirely. At the same time, if a clear mistake was made during the trial, an appellate court could reverse the decision and thus you could stand to succeed.

Legal appeals can be costly in time and in money, though, and could be for nothing. Unless you feel like the verdict handed down was completely wrong, you might find that you are more likely to benefit from simply moving on. You should speak with your personal injury lawsuit attorney and see what they believe is the best course of action. 

Legal trials can be a long and arduous process, and so it matters that you hire the right people to support you. If you are unsuccessful, make sure you consider the possibility of an appeal closely beforehand.

Getting the right support for your personal injury lawsuit

Of course, before you do anything else you should ensure that you are in the right position to challenge the lawsuit fairly. To do this, you want to find experts who you can trust to make your job easier. You want an attorney who focuses on the facts of the matter and the likelihood of success over the potential payout.

With that in mind, any West Virginians facing off against a personal injury lawsuit should consider legal help from Wolfe, White & Associates. With extensive personal injury experience, they can provide you with the insight needed to begin your case, to make your argument, and to have the best chance of a successful trial. Should your trial be unsuccessful, they can also offer the right insight onto whether or not going for a retrial would be a wise choice. 

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Why should you hire a personal injury lawyer?

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Why should you hire a personal injury lawyer?

Life comes at us at blistering speed, and with that, it is easy to fall at the risk of personal injury. If you are an individual who has been wronged or harmed in some way through a professional experience, you should consider chasing compensation. 

As a private citizen, you could have the potential to be compensated for any personal harm brought to you by a company or another private citizen. For the best results, though, you should consider hiring a personal injury lawyer.

Why, though? Why is hiring a personal injury lawyer recommended if you want to get the best chance at compensation?

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The reasons to hire a personal injury lawyer for your upcoming case

Get insight into your chances of success

If you choose to try and take on a personal injury case yourself, you could be at risk of failure. This is because you could misinterpret the case or put across information in a way that undermines your chances of success. Having legal knowledge and an understanding of the tactics that companies and individuals will use is very important.

Learning all of this on your own for an upcoming case is a massive risk. Instead, having a personal injury lawyer that can evaluate your case and offer a true insight into your chances of success is absolutely essential. It also means you do not have to use valuable personal time chasing up information and research on the law and precedent.

Make your case sound more powerful

At the same time, though, you can find that if you do proceed with the case a lawyer can strengthen your argument. 

A legal professional can put the timeline and the circumstances of your personal injury in a better light than you could. Most who represent themselves in a court of law can find their arguments undone in expected ways. Questions might be asked that you simply were not prepared to deal with. Either way, you can find that having a lawyer onside makes it much easier to put your case across.

There are often little legal considerations that you might not take into account when you self-plan your legal argument. By having an attorney look over your case, you make sure that you are much more likely to avoid these issues. This makes your case far more likely to tick the typical boxes needed for compensation.

Save yourself time and effort

Time is money, and if you are a busy person, you might not have the time to self-research everything. With that in mind, hiring a legal professional can save you lots of time. Instead of having to give hours up per week reading about various legal frameworks and precedents, a lawyer can hear your case and do this for you.

This means that you avoid having to find the time to dredge up documents, interview witnesses, and self-develop your case. This can save you many hours and means you do not have to chase up information that could be crucial to your case. With a personal injury lawyer on the scene, they can do this for you. You simply need to be available for any correspondence that they might need to go over with you to corroborate information and verify and details discovered.

Prove the case with expert help

Another benefit and one of the primary reasons to hire a personal injury lawyer is their expertise in negotiation. They can often find experts who could help you out. This could include not only getting together vital details like medical records or policing filings, but expert opinion givers. This could mean bringing in everyone from insurance specialists to liability assessors.

These experts can build your case, make it clear that you are in the right, and play a key role in making sure the jury understands your case is severe. This expert help can go a long way to making sure that you are likely to get the result for which you were hoping. All of these beneficial features can lead to what you really want, which is…

Getting the best settlement that you can

By having a specialist in personal injury working on your case, the settlements are likely to be better. They can really push the button and focus on obtaining the best possible settlement rate that you can. Plaintiffs who bring in the support of a personal injury lawyer are both more likely to succeed and more likely to get a higher payout.

Even after you settle all of the fees (more on this below), you can still be well up in terms of financial benefit. It will also be much more likely that the expert research, testimony, and support provided by a legal professional can obtain you a much higher settlement fee than you would have received on your own.

On top of this, legal professionals can make sure your arguments make sense. You are naturally going to be emotional after going through all that you have. A legal expert can make sure your arguments are grounded in fact, not emotion, resulting in a better payout opportunity than you would have gotten alone. 

No win, no fee costs

Lastly, the main benefit of using a personal injury lawyer is that they can work on a very suitable basis for you in terms of getting compensation. 

The vast majority of personal injury lawyers and attorneys will work on a no-win-no-fee basis. This means that if you take on the case with them you can feel confident that you only pay out for success. So, if the case goes against you, you can find that you do not have anything to pay in terms of your legal fees.

And if you do win, you have that nice lump of compensation cash to cover the cost of your settlement. This means that you do not have to pay for anything upfront. So, if you do hire a personal injury lawyer, they can only ‘cost you’ money from the settlement fee you would not have gotten without their expertise.  

Want to push your case further? Then contact Wolfe, White, and Associates today for specialist personal injury support in West Virginia. Let us see how far your case can go when it is in the right hands.

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Common Types of Personal Injury Claims

What are the most common types of Personal Injury Claims?

If you have been involved in an accident where your life has been changed significantly or you are facing challenges as a result of your accident, you may be able to file a personal injury claim to improve your situation or to get funds that could handle medical costs and more.

What is a personal injury claim?

A personal injury claim is a legal request for compensation made by an individual who has been injured, either physically or emotionally, due to the negligence of another person or entity.

What qualifies as a personal injury claim?

In order for your case to qualify as a personal injury claim, your injuries must have been caused by the carelessness or intentional actions of another person or entity.

There are many different types of personal injury claims in West Virginia, but some of the most common include:

  1. Car Accidents– According to the Centers for Disease Control and Prevention (CDC), there are over six million car accidents in the United States every year. If you have been involved in a car accident, you may be able to file a personal injury claim against the other driver if they were at fault.

  2. Workplace Accidents– If you have been injured while on the job, you may be able to file a workers’ compensation claim against your employer. Workers’ compensation is designed to provide benefits to employees who are injured while working, and it can help to cover medical expenses and lost wages.

  3. Slip and Fall Accidents– If you have been injured in a slip and fall accident, you may be able to file a personal injury claim against the property owner if they were negligent in maintaining the property.

  4. Dog Bites– If you have been bitten by a dog, you may be able to file a personal injury claim against the dog owner if they were negligent in controlling their animal.

  5. Defective Products– If you have been injured by a defective product, you may be able to file a personal injury claim against the manufacturer of the product.

What should you do if you are injured due to negligence or if you feel as though you have a case for a personal injury claim?

If you have been injured due to the negligence of another person or entity, it is important that you seek legal assistance as soon as possible. An experienced personal injury lawyer will be able to review your case and help you determine if you have a valid claim. If you do have a valid claim, they can help you pursue it and work to get you the compensation that you deserve.

It is also crucial that in the case of personal injury you act fast as you may not have the ability to seek damages if you wait too long after the accident has occurred.  In West Virginia, the statute of limitations for personal injury claims is two years from the date of the accident. This means that if you do not file your claim within two years of the date of the accident, you will most likely be unable to seek any compensation.

If you have been injured due to negligence, it is important to seek legal assistance as soon as possible so that you can get the compensation you deserve.

What to look for in a personal injury case law firm:

There are many different law firms that specialize in personal injury law, so it is important that you do your research to find one that is a good fit for you and your case. When looking for a personal injury lawyer, you should look for someone who has experience handling cases like yours, who is knowledgeable about the law, and who you feel comfortable working with.

Additionally, you should make sure to ask any potential lawyers about their fees before deciding to hire them. Some personal injury lawyers work on a contingency basis, which means they only get paid if you win your case. Others may charge an hourly rate or a flat fee. Make sure to ask about fees so that you are not surprised by them later on.

The most important thing to remember if you have been injured due to negligence is to seek legal assistance as soon as possible. An experienced personal injury lawyer can help you determine if you have a valid claim and, if so, pursue it and get you the compensation you deserve.

How Can I Expect a Personal Injury case to proceed in WV?

Once you have worked with a qualified lawyer and determined you have a case, they will likely file a personal injury lawsuit on your behalf in civil court. In order for the case to be successful, your lawyer will need to prove that the other party was negligent and that their negligence led to your injuries.

If the other party is found to be at fault, they may be ordered to pay you damages. These damages can come in the form of medical expenses, lost wages, pain and suffering, and more.

Every personal injury case is different, so it is important to work with a qualified lawyer who can help you understand the specific details of your case and what you can expect. Some personal injury claims can take 9 months to a year to resolve so it is important to manage your expectations for compensation with your recovery timeline.

Contact us today if you have been involved in a personal injury case or you need a legal consultation:

If you have been involved in an accident where you have been injured, you may be entitled to compensation. Contact an experienced personal injury attorney in West Virginia to discuss your legal options.

Our personal injury attorneys have years of experience helping clients in West Virginia get the compensation they deserve. We will work with you to understand the details of your case and help you pursue the best possible outcome. Contact us today for a free consultation.

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Repercussions of a Claim of Infidelity in a West Virginia Divorce Proceeding Regarding Child Custody and Alimony

Repercussions of a Claim of Infidelity in a West Virginia Divorce Proceeding Regarding Child Custody and Alimony

Most states have adopted no-fault divorce laws, which only requires that the parties simply allege irreconcilable differences as the reasons for the divorce without having to present proof. These laws abrogated long-standing laws where a party had to allege specific grounds for divorce such as are found under W.Va § 48-5-201 through 209:

 Abandonment

 Cruel and inhumane treatment

 Felony conviction

 Adultery

 Desertion

 Voluntary separation

 Permanent and incurable insanity

 Habitual drunkenness or drug use

 Willful neglect or abuse of a child or spouse

By abolishing the requirement of proving grounds for divorce, the parties, as well as the courts, were spared the drama, accusations, conflicting testimony and evidence and emotional trauma involved in convincing a court that one party badly misbehaved. No corroboration of “irreconcilable differences” by one party is needed.

West Virginia, though, is a hybrid state in which a party may either choose to simply allege irreconcilable differences without more or allege any one or more of the grounds found above, including adultery or infidelity, a common allegation and reason for many marital dissolutions. The standard of proof for any of these grounds is by “clear and convincing evidence,” a higher civil standard than the usual one of “preponderance of the evidence.” So, if a party in a West Virginia divorce proceeding does choose to use infidelity as grounds for the divorce, how does it affect child custody and alimony?

Why Allege Infidelity as Grounds for Divorce? Child Custody

A party may feel that a specific statutory reason for the divorce will provide an advantage in a child custody dispute or if the party is requesting alimony or spousal maintenance. However, the West Virginia Supreme Court ruled in J.B. v. A.B., 161 W.Va 332, 242 S.E. 2d 248 (1978), that infidelity or sexual misconduct is not to be considered as evidence of unfitness of the parent for child custody unless the conduct was so egregious or aggravated as to adversely affect the best interests or welfare of the child. In other words, the conduct would apparently have to be such as to significantly harm the parent-child relationship. A majority of courts in other states have come to similar conclusions feeling that they would otherwise be rewarding and penalizing parents for their conduct.

A parent who has had extramarital affairs but who has a loving and close relationship with his/her children would likely not be harmed by an allegation of infidelity regarding custody issues. A scenario where the parent has engaged in multiple affairs that are known or unknown to the children and who are suffering emotionally as a result of lack of parenting time may be one where the court will consider infidelity as a factor in awarding primary custody.

Alimony

Alimony is the payment of money from a spouse to the other so that both can remain living separately at a relatively equal income level. Alimony can be awarded once the parties are living in separate residences and are no longer acting as spouses.

There are 4 levels of alimony in West Virginia:

1. Permanent — until death or re-marriage of recipient

2. Temporary — until recipient recovers financially

3. Rehabilitative — allows resources so recipient can acquire a degree or vocational skill

4. Alimony in gross — lump sum payment

Infidelity or adultery, however, may be a factor in awarding alimony. West Virginia courts decide alimony issues on a party’s ability to pay and the other party’s level of need and can take infidelity by one or both parties into consideration. A court can deny alimony if both parties were unfaithful to the other or if the one to receive it was in an adulterous affair. Otherwise, the judge can adjust the amount and the duration of alimony based on proof of adultery.

Of course, this blog is for informational purposes only and not legal advice. You should contact us directly to discuss the specifics of your case. Call and ask for Chris at 304-245-9097. We look forward to speaking with you about your case.

Sincerely,

Steven S. Wolfe, Esq.

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Federal Fair Debt Collection Practices Act

Federal Fair Debt Collection Practices Act

Have you ever received annoying and persistent calls from credit collection agencies about certain debts that you may or may not owe or that you are trying to pay off? You do have rights when it comes to how these creditors and collection agencies operate.

The Fair Debt Collection Practices Act (FDCPA), found under 15 U.S.C. § 1692et seq, was promulgated in 1978 and is designed to protect consumers like you from deceptive and abusive practices by collection agencies and creditors who are attempting to collect a consumer debt. The FDCPA (ACT) does not apply to commercial or business debts. Consumer debt refers to household, personal or family debt such as credit cards, car loans, and payday loans. The Act does not apply to student loans or mortgages.

Each state has its own version of the FDCPA but it may not be inconsistent with the federal law unless its provisions are more protective of the consumer.

Validating the Debt

When contact is initially made by the creditor, you have 5 days to pay the debt. Afterward, the creditor must inform you of the following in writing:

 

 Amount of the debt

 Name of the creditor

 That you have 30-days to dispute the debt before the creditor may assume it is valid

 If you dispute it, the creditor must provide you with verification of the debt

 If you request it in writing within 30-days, the creditor or collection agency must provide the name, address and phone number of the original creditor

No collection efforts can be made if you dispute in writing the debt’s validity or ask for the original creditor’s identity within the first 30-days of contact. If requested, the creditor must provide proof of the debt’s validity or name, address and phone number of the original creditor. If the debt is valid, you may wish to work out a payment plan or compromise. If not, contact an attorney for advice.

Harassment Prohibited

Many consumer complaints refer to harassing phone calls at home or at the debtor’s workplace. Under the Act, creditors may not place collection calls at unusual hours. This usually means that calls may not be made before 8:00 a.m or after 9:00 p.m. Calls may not be made at your place of work if the creditor has reason to know that your employer forbids such calls such as your advising the creditor. Also, if you have a lawyer and give the lawyer’s contact information to the creditor, then calls are only to go to your attorney unless the attorney is unresponsive or allows the creditor to contact you.

You can also advise the creditor to cease making collection calls to you. Once you do, the creditor can only state that collection efforts will cease and that specific remedies may be pursued.

A collector may, however, contact third parties for information about your whereabouts after identifying itself and stating that he/she is trying to locate you. No information about your debt may be revealed or that you owe one unless the third party specifically inquires.

Misleading or False Representations

If you experience any of the following practices, the creditor may be in violation of the Act:

 

 That you will be arrested or imprisoned for nonpayment

 Giving false credit information or false information about the debt

 Advising you that you have committed a crime

 Using or distributing documents that resemble official court documents

 Using false information or deception to obtain information about you

 Falsely stating that certain documents are a legal process or that they are not

 Stating that the creditor is from a consumer reporting agency

 

There are also certain unfair practices that are prohibited. For instance:

 

 Soliciting a post-dated check to use as a threat

 Using a postcard to notify you of a debt

 Collecting or attempting to collect any expense incidental to the debt unless authorized by law or by the original debt agreement

 Accepting a check postdated more than 5 days unless written notice is given to the consumer of the intent to deposit it and notice is given no more than 10 nor less than 3 business days before the date of the deposit

 Taking or threatening to take your property if the creditor has no enforceable right to it or does not intend to do so

Remedies

You can collect any actual damages that you incurred as a consequence of the creditor’s deceptive practices. Punitive damages in the amount of $1000 may also be awarded. If a class-action suit, the creditor may be liable for $1000 per plaintiff and up to $500,000 or 1% of the creditor’s net worth, whichever is greater, to be divided among the class action plaintiffs. Costs and reasonable attorney’s fees may also be awarded.

We would be happy to answer more questions about your specific consumer debt collection matter if you prefer to give us a call at 304-245-9097. Ask for Steven.

Sincerely

Steven S. Wolfe, Esq.

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Car Wrecks: The 9 Steps Of Treating & Proving Your Soft Tissue Injury

Car Wrecks: The 9 Steps Of Treating & Proving Your Soft Tissue Injury

One of the most challenging aspects of any car wreck, truck wreck, or motor vehicle accident is proving damages. Quite often, car wrecks do not result in broken bones, stitches, or deep lacerations, but the injuries sustained can and are real. The violent jolt and change in velocity (crash) that your body is subjected too can cause sprains, strains, stretching, tearing and bruising of your ligaments and soft tissue.

Here is what we think you should do after a wreck to properly document and treat your injuries for your own health and for your claim, should you seek to pursue the compensation you may deserve.

*If you have health insurance, make sure that you use it. (More on this in other blogs) Many hospital facilities may insist that you sign a Letter Of Protection or Lien or give them the name of the at-fault party’s auto insurance so they can seek med pay coverage. Be adamant that they bill your health insurance (as long as they typically accept that same kind of insurance), especially if you have Medicare or Medicaid coverage.

1. If you are jolted and mildly hurting, then go get treatment for your injuries upfront. You should go to the emergency room after the wreck to get checked out. People too often try to “tough it out” and thus refuse treatment at the scene, thinking, “I wasn’t hurt too bad, and I certainly don’t need to go to the ER. I just want to go home.” Well after the adrenaline wears off and your body begins to return to its normalcy, your soft tissue (ligaments, muscles, joints, etc.) starts the healing process and here comes the PAIN.

The next few days or weeks may be rough, so we suggest you go to the Emergency Room or your family doctor to get checked out immediately just to make sure there isn’t anything more serious going on. After all, you aren’t a medical professional (most likely) with the training and skill (or equipment) to properly diagnose your conditions. So go get checked out!

2. After you get checked out and a few days or week pass, if you are still hurting, follow up with your treating doctor. If you still are in pain after a couple of days, then you should follow up with your primary care physician (family doctor) or walk-in clinic physician’s assistant to discuss your condition with a trained professional. They can help with a treatment plan and discuss more or less serious conditions as appropriate. They’ll know what to do!

3. After a week or so, if your family doctor (or PA) isn’t able to help alleviate pain, then you should ask for a referral to an orthopedic doctor. Orthopaedic’s specialize in these types of injuries and are better equipped to help you heal. In our Logan Mingo Boone Wyoming areas, we have a few excellent orthopedic doctor practices with privileges at all the major hospitals. Seek someone local that you can trust. No need to run to Charleston!

4. Your orthopedic doctor will likely refer you to physical therapy (physical therapist) to see if that helps. If it does, then that is great because remember, the key is to get better. If your physical therapy helps, then you are in a better position now than you were.

5. If physical therapy (PT) doesn’t help, go back to your orthopedic doctor for a follow-up. Your health insurance company usually will not pay for an MRI until you have completed physical therapy. If you are still not better, then your doctor can order an MRI that will show a lot more than the X-rays that don’t show much.

6. Your orthopedic doctor may recommend injections or surgery. Make arrangements to get these treatments as recommended by your doctor. If you don’t get these treatments, you won’t get better and you won’t recover everything you are entitled to in your personal injury case.

7. This should go without saying, but I’ll say it: don’t miss any doctor appointments.

8. If you are still not getting better, seek second opinions when you reach the end of the line with your first doctor. Often times they will have a colleague to whom they can make a referral to help get you the treatment specialist that you need.

9. Lastly, consider chiropractic treatment. Some people will have lifelong injuries that can only be treated by consistent chiropractic treatment. You won’t know if it will help you until you try. The frequency will be a lot in the beginning, possibly 3-4 times per week, but that will taper off as the treatments begin to work. Then, you can just come in as needed.

Of course, this not an exhaustive list of damages in your car wreck case because your damages claim may include: lost wages, lost business expectancy, annoyance, inconvenience, aggravation, punitive damages, and many other types of emotional or economic losses.

For a more in-depth discussion of your car wreck case and your damages claim, you can give us a call at 304-245-9097. Ask for Steven. We routinely handle such claims and are happy to discuss it with you in an initial consultation. As always, in car wreck cases such as this, no fee if no recovery.

So you’ve got nothing to lose by calling us. Most of the time we can negotiate a confidential pre-lawsuit settlement which means you don’t have to file a lawsuit in court. However, that option is still available to you should the insurer or tortfeasor refuse to be reasonable in pre-lawsuit negotiations. Call Wolfe, White & Associates law firm to get your case evaluated today!

Steven S. Wolfe, Esq.

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What is the Magnuson-Moss Warranty Act of 1975 and Why it is Powerful for Consumers

What is the Magnuson-Moss Warranty Act of 1975 and Why it is Powerful for Consumers

Consumers are often victims of fraud or misrepresentation in the quality of consumer (personal, family or household) goods and in how they are intended to perform. To protect consumers, federal legislators passed the Magnuson-Moss Warranty Act (Act) in 1975.

Warranties are promises by sellers that the material or workmanship is defect-free or meets a certain level of performance over a certain time. If not, the seller promises to repair or replace the product or provide a refund.

Congress wanted to encourage sellers to provide written warranties to assure consumers and to foster competition for the best products. Although sellers are not required to provide written warranties, many consumers will be skeptical of products that do not have one. Further, Congress wanted all parties to have a quicker and less costly method of resolving disputes and to allow consumers an easier path to a remedy for breach of warranty lawsuits in the courts.

If a company does provide a written warranty, it must comply with the Act. There are 3 basic requirements:

1. Designate the warranty as limited or full2. State certain specified information in the language that is comprehensive but clear and easy to read and understand3. Ensure that warranties are available for consumers to read before buying the product in stores where the products are sold

A warrantor must also describe:

 The legal remedies available

 Time under which its obligations will be performed

 The time it will perform once notice of defect or malfunction is received

 Properties of the product that are not covered

The Act makes deceptive language inapplicable such as promising maintenance or repair service where none is given or which the seller had no intention of providing.

Disclaimers and Modifications

The Act does not apply to products sold for commercial purposes or for resale. Any written warranty cannot modify an implied warranty, which applies to all consumer products. For instance, an implied warranty of merchantability assures that the product is guaranteed to work for its intended purposes. WVa § 46A-6-107 does not allow sellers to avoid this by a disclaimer advising the buyer that the product is sold “as is” unless it is for resale.

If the warrant is designated as “limited,” the seller can limit the warranty to a certain time such as 2-years. Full warranties may not be time-restricted or limited.

Tie-In Sales not Permitted

Tie-in sale provisions are not permitted. These are clauses wherein the seller requires that you buy an additional item to be used with the subject product or that it only be serviced by its own factories or else the warranty is voided. It can state that its warranty does not cover repairs poorly done at facilities other than its own. A seller can also use a tie-in provision so long as it first convinces the Federal Trade Commission (FTC) that a tie-in product is necessary for the proper performance of the product.

Remedies

The Act makes it easier for consumers to seek remedies. However, a seller can require arbitration or other informal resolution measures before a lawsuit may be filed. If no informal resolution is achieved, the consumer may then file for breach of the warranty in federal or state court though major cases are often brought as federal class-action lawsuits. A prevailing plaintiff may recover reasonable attorney’s fees and costs.

The FTC has a Dispute Resolution Rule comprising certain criteria if a seller has an informal dispute mechanism such as arbitration. The arbitration entity must adhere to the following:

 Have written procedures

 Be free of charge

 Inform the parties when in receipt of a dispute claim

 Allow parties to present supporting documents and rebut each other’s points

 Be adequately funded and staffed so as to resolve disputes quickly

 Resolve disputes by written opinion within 40 days of submission of a dispute

 Be nonbinding unless the parties both agree to be bound

 Keep complete records

 Be audited annually

If you have a question breach of warranty for goods you’ve purchased, give us a call. At Wolfe, White & Associates we know the law and how to help protect consumers. Call us at 304-245-9097 for a free consultation.

Steven S. Wolfe, Esq.

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What is a Certificate of Merit and Why Must You Have One for Medical Malpractice Claims?

What is a Certificate of Merit and Why Must You Have One for Medical Malpractice Claims?

Before you can file a medical malpractice or negligence case against a medical provider or a medical facility, West Virginia law requires that you first file a certificate of merit. This is essentially an affidavit from a licensed physician who is an expert in the field of medicine for which the lawsuit is based attesting under oath to the validity or merits of the claim.

Medical malpractice claims are grounded in negligence law that governs such cases as motor vehicle accidents, slip and falls or other actions where someone’s conduct fell below a certain standard of care and led to an injury. However, many states including West Virginia feel that medical providers and hospitals need protection from frivolous claims that they assert drive up the cost of medical care and insurance premiums and that results in doctors practicing defensive medicine because of the fear of lawsuits.

Consequently, many states including West Virginia require that an expert medical provider asserts under oath that a malpractice claim has merit. Also, many states have placed caps or limits on what you can recover in a medical malpractice case. In West Virginia, the cap is $250,000 per occurrence for non-economic damages. You are not limited by economic losses such as past and future medical expenses and loss of earnings.

Regardless of whether such arguments are valid, you will have to locate a medical expert to review your medical records and facts and determine if the applicable medical standard of care was breached in your case that led to your injury.

Under WVa Code § 55-7B-6, also known as the Medical Professional Liability Act, you must serve a certificate of merit by certified mail on each medical provider or facility against whom you plan to file your malpractice claim at least 30-days before you file your claim. The certificate is to be given under oath by the expert physician and must contain the following:

 Statement of the theory or theories of the claim

 A list of all health care providers and facilities to whom you are sending the certificate of merit

 The credentials or qualifications of the expert

 That the expert is familiar with the applicable medical standard of care

 The expert’s opinion on how the standard of care was breached by the defendant health care provider or medical facility

 An opinion on how the breach of the standard of care led to the injury or death

 That the expert has no financial interest in the underlying claim though the expert may testify as an expert in any judicial proceeding regarding the case

A medical provider or facility that has received the certificate has 30-days to respond and state that it has a bona fide defense to the claim and provide the name of defense counsel if any. Further, the defendant may make a written demand for pre-litigation mediation, which shall be concluded within 45-days of the date of the demand. As a claimant, you may depose the health care provider before the mediation.

During this period, the statute of limitations for bringing the claim is tolled or stayed for 30-days. If it goes to mediation, the statute is tolled for 30-days after written notice from the mediator that the mediation did not settle the matter.

If you have a question about medical malpractice or a physician or hospital negligence case, give us a call. At Wolfe, White & Associates we know the law and how to help identify medical negligence. Call us at 304-245-9097 for a free consultation.

Ask for:

J. Christopher White

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The Duty To Mitigate Damages in Employment Cases–What Does It Mean?

The Duty To Mitigate Damages in Employment Cases--What Does It Mean?

In many civil cases, plaintiffs or claimants are required to mitigate or minimize their damages by undertaking reasonable efforts to do so. In employment cases, W.Va. Code §55-7E-1 through 3 (enacted in 2015) requires you in any employment action taken against a current or former employer to mitigate your wage losses regardless if your action is grounded in common law or statutory law. The law means that you must take affirmative action or make a good faith attempt to mitigate your past and future wage losses, even if the employer’s conduct was willful or malicious. The policy behind the doctrine of mitigation is to encourage plaintiffs to seek work.

Mitigating your wage losses means that after your wrongful discharge, retaliatory discharge or other employment law claims, you searched for and accepted comparable employment. It also means accepting an offer of reinstatement from your former employer if it was appropriate. It does not mean that you have to accept any offer of employment; only one that offers substantially the same pay and benefits.

Back or front pay is awarded to plaintiffs who can prove unlawful discharge but these awards are reduced by the number of earnings you earned incomparable or substantially equivalent employment. Back pay awards include all earnings, benefits, bonuses, unused vacation time, sick time, the value of insurance premiums the employer would have paid had you continued employment and commissions lost because of the wrongful discharge or other unlawful action. The court will deduct from the award any money you were able to earn from the date of discharge to the time of the verdict in your favor. If awarded future lost wages, the court can deduct any compensation you were likely to earn from the date of the verdict to the end of your working life.

Front pay is awarded if the court determines that reinstatement to your former employment is inappropriate because of a hostile work environment or other circumstances. The award is for compensation and benefits the court views as necessary to make up for the difference in pay you would have earned in the future. A court has to determine how long it would take you to return to the same level of pay you were earning when discharged.

If you fail to mitigate your damages, a court can award you nominal damages, which is essentially one dollar. The maliciousness of your employer is forcing you to resign, discriminating against you or imposing unreasonable employment conditions will not excuse you from your duty to mitigate.

You need only seek work that is similar to the one for which you were discharged. You are not required to seek nor accept substantially inferior employment or have to accept work that is an unreasonable distance from your home. Your efforts to find work of a “like nature” need not be exhaustive but be reasonable.

To demonstrate that you took reasonable efforts to find comparable employment, keep a work log and include the following:

 Date of each phone call or application submitted

 Name and address of each contacted employer

 

 Position for which you applied

 Names and titles of people you met

 Outcome of search including scheduled interviews or letters of rejection

 Date you registered with an employment agency

 Names of recruiters and efforts to find you employment

The value of unemployment benefits or food stamps or other public benefits will not offset an award for back pay.

You may be excused from mitigating your losses if you can demonstrate that you suffered severe depression or other mental harm such as Post-Traumatic Stress Disorder though this is a high standard to meet.

If you have a question about an employment case / wrongful termination case, give us a call. At Wolfe, White & Associates we know the law and how to help protect your livelihood when you’ve been unlawfully terminated. Call us at 304-245-9097 for a free consultation.

Steven S. Wolfe, Esq.

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Coal Miners Discrimination / Retaliation Claims Under W.Va. Code 22A-1-22 et seq: Miners Reporting Safety Concerns

Coal Miners Discrimination / Retaliation Claims Under W.Va. Code 22A-1-22 et seq: Miners Reporting Safety Concerns

Mining is a hazardous occupation. Although companies in our state have instituted safety programs and gone beyond the extreme dangers and risks that once plagued the industry, there continue to be abuses.

Safety is or should be the number one priority in the mining industry. Explosions, toxic fumes, methane and coal dust explosions, collisions, fires, falling objects and cave-ins are some of the hazards that miners are routinely exposed to and must be aware of at all times. If a hazard is present, miners are encouraged to report them as well as to report any other violations that affect miner safety. Miners who do take the initiative to protect themselves and others by reporting such violations should not have to be concerned about retaliation from their employers.

What Constitutes Discrimination?

The West Virginia legislature codified miner protections from being terminated or having adverse employment measures taken against them in W.Va Code § A-1-22 that deals with discrimination and retaliation in this context. Retaliatory measures or reprisals may not be taken against the following mine employees under this code section:

 Miners or mining representatives who report health or safety violations

 Mine employees who have testified or who are about to testify in any proceeding resulting from the administration or enforcement of the statute

 Any mine employee who accompanied state mine inspectors to point out health and safety hazards or violations

Mining companies are required to have comprehensive training at least once per year where miners are trained in health and safety, how to recognize hazards and the proper reporting procedures. Mine operators do take offense at employees who report violations. While terminating workers who make such reports may be too obvious, although this does occur, operators undertake other discriminatory measures including:

 Suspension

 Changes in work hours

 Change of work location

 Loss of or reduction in pay

 Withholding compensation

 Reduction of or loss of vacation

 Reduction in overtime opportunities and bonuses

 Aggravated verbal intimidation

According to the law, the verbal intimidation must be not only “…in response to or based upon an employee’s initiation of a safety grievance…” but be “…of such a nature as to create a chilling effect on miners contemplating the filing of safety grievances..” This usually suggests that a mine operator, or agent of one, who has been reported will have repeatedly used threatening language against the miner or even his family so as to dissuade others from reporting hazards or violations that they observe on the job.

Remedies for Aggrieved Miners

If a miner feels he has been discriminated against in any of the above ways, he can take his case to the Mine Safety and Health Administration (MHSA) within 30-days of the discriminatory act. This includes miners who have not been compensated by an operator for loss of income due to posting of a withdrawal order. These are orders that cease further operations because of a safety hazard.

After filing of the complaint, a public hearing may be held if requested by any of the parties. Written notice by certified mail of the hearing must be given at least 5 days before it is held to the charged party, usually the mine operator. Within 45-days after the hearing, the board is to issue findings of fact. If violations occurred, the MHSA board can order the miner reinstated to his former position with back pay or that compensation be paid to a miner who lost pay due to the withdrawal order. If the proceedings are not completed within 45-days, a terminated miner must be reinstated until the board issues its findings. The board has discretion to reinstate a terminated miner if no determination is made within 45-days commencement of proceedings and the delay is caused by the board. If the delay was caused by the miner, no reinstatement will be ordered until final determination.

If the miner prevails, all his costs and expenses, including attorneys fees reasonably incurred as determined by the board, may be paid.

The administrative remedy procedure is not exclusive so a miner has the right to pursue compensation in the circuit courts of the state without first having to exhaust or complete the administrative process.

If you have a question about a whistle-blower matter, give us a call. At Wolfe, White & Associates we know the law and how to help protect your livelihood when you blow the whistle. Call us at 304-245-9097 for a free consultation.

Steven S. Wolfe, Esq.