Dirk Derrick (00:00):
Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law lawyers and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We'll also discuss existing laws and propose changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm, and I'm your host.
Voiceover (00:35):
Please see required ethics disclaimers in show notes.
Dirk Derrick (00:42):
Welcome to the Legal Truth. I'm here with Co-host Pearl Carey. Welcome Pearl. Today we're talking about the truth, about the validity of your personal injury claim, and that's probably one of the most common questions we get when people call in. Do I have a claim today we're going to try to explain some questions to give people better information as far as what may or may not be a claim.
Pearl Carey (01:11):
Absolutely. Thank you so much for that introduction, Dirk. I'm so excited to be back on our podcast today. And so first off, I have to ask, what criteria must be met for someone to have a valid personal injury claim in the first place?
Dirk Derrick (01:24):
There are three main elements to having a valid claim. Okay, there's a bunch of facts, but there's really three main categories. When I was in law school, the professor taught it as a three legged stool. With any three legged stools, you need a solid leg on all three places because if you have a weak leg and you sit on a three legged stool, you know what's going to happen.
(01:48):
I'm going to fall over. You don't fall over. So the three legs that we investigate in every case is liability, liability, leg, and that is whether or not someone has been injured by an action that falls within a theory that the state recognizes as a cause of action. In South Carolina, for a typical car accident case, you have to prove duty, negligence, causation and damages. So that's the liability leg. You also have to prove that the plaintiff wasn't more than 50% at fault on the liability leg. Gotcha. So that's the first leg we're investigating from day one, right? The second leg are the damages, and South Carolina, the damages are medical bills, lost wages, pain and suffering, loss of enjoyment of life, past and future, loss of earning capacity, future medical impairment restrictions. So we are looking for those damages under the damage leg. Those are actual damages.
(02:49):
The second kind of damages in South Carolina are punitive damages, and that's when someone acts recklessly more than just negligence and they're reckless. And then you can recover in some instances, punitive damages, which is an amount of money that will punish the wrong doer. And that amount can fluctuate depending on the degree of recklessness and what the entity is that committed that reckless act, whether it's an individual or corporation. And the third leg is collectability. Collectability is the ability to be paid for the damages that were caused by someone's negligence or recklessness. My granddaddy used to say, you can't get blood out of a turn. Legally, what that means is you can have someone who has awful liability, they were reckless. You can have major damages, but very limited insurance and no assets. So the collectability of that case is very low. That would be a weak leg on collectability.
Pearl Carey (03:50):
Can't really get a lot out.
Dirk Derrick (03:52):
Can't get a lot out, and collectability sets the cap of what you can receive no matter how strong the other two legs are. So when a case comes in to us, we immediately start investigating liability leg, a damaged leg, and the collectability leg. And those three legs kind of play together in determining the strength of a claim.
Pearl Carey (04:16):
So what you're kind of saying is if one of those three legs is missing, there's really not a whole lot you can do.
Dirk Derrick (04:20):
Well, if we investigate and can't find any facts and elements that we can add to that leg to strengthen it, you would have a weaker case if one of those legs are weakened or if one of those legs are weak. The truth is very rare does someone walk in and have perfect three legs. We're always working with two strong legs and a weak leg that we got to build up, or it's not always three strong legs, so you don't have to have three strong legs to bring a claim. But when you start investigating that, you'll determine where do we need to spend more time investigation, building the case up, hiring experts if we need to. So it's a model that we work under.
Pearl Carey (05:07):
So kind of turning back to the facts of a case, when we're talking about liability and finding out who's really at fault, how can I determine who's at fault in my accident? What does the process look like for that?
Dirk Derrick (05:19):
Our process and my belief is we need every fact that exist in this world about this incident. And those facts don't only include what happened on that day when the incident occurred, but going backwards everything before and then going forward. Okay? Every case has hundreds of facts and there's facts that strengthen your case and make it more valuable. There are facts that weaken your case, so make it less valuable. And then there's neutral facts, but we want to know all of them. As of today, taping this podcast, I think we have seven or eight private investigators on standby that when we get hired, we contact them that day or within 24 hours with a to-do of investigations that we want done because evidence disappear. We need facts. So gouge marks or skid marks disappear off the road. Surveillance cameras right over themselves so you can get surveillance and see what happened, but then it writes over itself and disappears. Witnesses disappear. People forget things. Almost all cars have data boxes in them, and if we can get those, it will show what the drivers were doing right before the wreck. So we want to download that information before it gets gone, gets demolished in,
Pearl Carey (06:38):
And then it's gone as it,
Dirk Derrick (06:40):
it' s Gone. Gone.
(06:40):
So the most important thing about fax is to get 'em fast and before they disappear.
Pearl Carey (06:48):
So speaking of getting help faster, moving our case along as quickly as possible, so making sure we can gather all that evidence. What kind of time period do I have to get medical attention if I've been in a car accident or what would you kind of recommend in terms of getting things done quickly? In that sense,
Dirk Derrick (07:04):
My recommendations as far as the plaintiff or the person who's injured, number one, get medical attention if you need it. Okay. We don't tell anybody, go out and get medical attention if they don't need it. Okay? If they need medical attention, they need to get it. Now. The truth is there's people at the scene of the wreck and the adrenaline's pumping and they wake up the next day and they're hurting or wake up two days from now they're hurting, but they need to do for themselves from an injury standpoint, what they would do, ignoring the fact there was a wreck that caused it. Second thing on facts, I would recommend to people who are injured stay off social media.
Pearl Carey (07:41):
I think we talked about that in our last podcast, how important it's to kind of keep things private at first.
Dirk Derrick (07:45):
Don't pull out the phone and start posting at the scene of the wreck or posting afterwards. That's the first thing the insurance company's going to look at or one of the first things they're going to look at your social media and see what you had to say about the wreck or what was put on your social media after
Pearl Carey (07:59):
How things might appear online. Yeah, okay.
Dirk Derrick (08:02):
Third thing is to do what your doctors tell you to do. Can't come in and claim you injured and you're not doing what the doctor has recommended. And then the last would be whether you hire us or whoever you want to hire, you do need to get someone in your corner investigating the case. Like we just said, evidence disappears. And a lot of times there's delays and some of 'em are very understandable delays. If somebody's hurt bad or if someone's been killed in a wrongful death case. If that happens to my family, my first thought's not going to be, Hey, I got a lawsuit. Yeah,
Pearl Carey (08:41):
Let me call 'em my lawyer. I'm going to get a
Dirk Derrick (08:42):
Lawyer. And that's totally understandable. The truth is, it can hurt you in the long run when you don't get the evidence as fast as possible. But that's totally understandable. I mean, we've cases where people are being injured bad and they don't contact us for six months,
Pearl Carey (09:01):
They've got all their stuff to worry about probably. That's right. That's right.
Dirk Derrick (09:05):
And I always think, man, I wish I had it the week afterwards, so I'd have gotten this piece of evidence and this piece of evidence to help this family because it's gone. But it's understandable. I always wish that someone in the family who's just one step out of the main family would say, Hey, I need to take care of this and make sure this is getting investigated and documented. And even if they going out and taking photos at the scene or doing some investigation just so that we'll have some stuff to work with when those people end up wanting an attorney to pursue the claim.
Pearl Carey (09:43):
So kind of speaking about the car accident, an example again, what kind of evidence should I be gathering at the scene? Let's say I did just get an A wreck and maybe my adrenaline is pumping and I'm feeling like I can get photos or whatever. Is there anything specific you think I should look for first?
Dirk Derrick (09:58):
I see some of that. I'm not big on my client's gathering a bunch of evidence at the scene.
Pearl Carey (10:05):
Okay, so you think maybe a private investigator should be doing that or a family Member
Dirk Derrick (10:10):
We're going to do that. Okay, now piss a fender bender and you're not hurt. They're not hurt, and you probably may not even need a lawyer and you may want to document it yourself and take pictures of the vehicle, the contact zone, and if there's skid marks and then the names of witnesses. If there's one thing that a client could help us with, if anyone talks to them at the scene to get their name and number so we can contact them. I've been practicing a long time, obviously, right? Yeah. It used to be 20, 25 years ago. If there's a wreck, you had all these witnesses and we'd get these names and telephone numbers, everybody would stop. They'd wait for an ambulance to get there, wait for the cop to get there. They'd leave pieces of paperwork, their names and number on it, and
Pearl Carey (11:01):
Not so much anymore,
Dirk Derrick (11:03):
2023, we didn't have a wreck out on 5 0 1 in front of Tanger or on an interstate in North Charleston. And there's all kinds of witnesses and nobody stops, nobody leaves the number. So if anyone's at the scene and you have independent witnesses getting their names and numbers, probably the most important thing that a client could do.
Pearl Carey (11:25):
So why would you discourage a plaintiff from getting their own evidence? Do you just feel like maybe that would look bad if they're posting stuff about it, or is there any specific reason for that, or do you just think it would be better for an actual investigator to look into it?
Dirk Derrick (11:38):
So it's good to preserve evidence. Evidence skid marks can disappear. If you contact someone early on, they can get pictures of the two vehicles and download the data. I guess it depends on how quickly you get to help you. Okay. If you think you don't try to handle it yourself, there's no bad injuries, maybe document as much as you can.
Pearl Carey (12:01):
So you're kind of just saying that it's important to strike an appropriate balance. Maybe not over gathering information initially and maybe not doing anything at all. Okay. That makes sense. So kind of going back to the health aspect of things. I know that you mentioned that if a plaintiff gets out of the car after their car wreck, their adrenaline might be pumping and maybe they don't feel necessarily like they have any pertinent injuries right away. Do you still think that someone like that should go to the doctor just in case on the same day or maybe the day after? Or does that kind of go into the whole realm of over investigating or overtreating?
Dirk Derrick (12:38):
I think people should do for their health, what they think they should do for their health. Okay.
Pearl Carey (12:42):
So it's kind of subjective as
Dirk Derrick (12:43):
If there hasn't been a car wreck.
Pearl Carey (12:45):
Gotcha.
Dirk Derrick (12:46):
I don't think people should go out and run to the doctor because of anything other than their concern about their body or the health of their children in the backseat and that kind of stuff. I've told a lot of clients over the years just treat this as if this is a condition that has nothing to do with the wreck, what would you do? Listen to your doctor. Don't run out to try to build up fake cases, but at the same time, if you are hurting and you're just not toughen it out, that can be used against you too. Understand, insurance companies have a job, their job is to make money for their shareholders.
Pearl Carey (13:23):
Absolutely.
Dirk Derrick (13:24):
By paying as little as possible. And they take any facts that you give them and they spin it one way or the other. So if someone goes to the hospital after a wreck to get checked out, which is a reasonable thing to do, they just rented. They just rented a hospital, they told the officer they weren't hurt. If someone doesn't go and they wake up the next morning and they're hurting or they wait two or three days because they think it's just sore, they didn't get over it. Well, that person wasn't hurt. They didn't go for three days.
Pearl Carey (13:56):
So either way,
Dirk Derrick (13:57):
They don't spend it either way. I think people should take care of their health, do what they think they need to do for them and their families. And then from a legal standpoint, as long as they're being honest, which is the most important thing for any plaintiff to do, any injured persons, just be honest, then they're the easiest to present to a jury.
Pearl Carey (14:19):
So what you're saying is that you honestly should just not overthink it and just try and do what's best for your health in the moment?
Dirk Derrick (14:25):
I think do what's best for your health and be honest with everyone you deal with.
Pearl Carey (14:32):
So kind of going back to these insurance companies, can I pursue a personal injury claim if the other person involved in my wreck is underinsured or maybe they don't even have insurance? Yes. Okay.
Dirk Derrick (14:44):
In South Carolina, if you're a South Carolina resident, you have what's called uninsured motorist coverage on your car. Okay? Mandatory insurance. So if you got 25,000 in liability, you'll have 25,000 in uninsured motorist coverage that pays for damages to you caused by an uninsured driver in another vehicle. Underinsured motorist coverage or damages that you can recover if the person who hits you or causes the wreck doesn't have enough insurance, they have some insurance, but not enough. So both of those policies, underinsured motorists, it's called UIM. Underinsured motorists is not mandatory.
Pearl Carey (15:29):
Oh, okay.
Dirk Derrick (15:30):
The law in South Carolina is that the insurance company has to make you a meaningful offer of underinsured motorist coverage, and the only way they can not put it on your policy is if you sign a rejection form saying, I don't want it. Now, from my standpoint, it is very cheap insurance and you absolutely should get it underinsured in a state where the minimum level is 25,000 per person on liability, which means the most you got to have on the road is 25,000 per person, 50,000 per accident and 25,000 for property damage.
Pearl Carey (16:09):
Gotcha.
Dirk Derrick (16:10):
I'm riding in the car with my family. There's four of us. You hit us the most. Any one person in my car can get 25,000, and the cumulative can not be any more than 50. So you divide in $50,000 worth of money over four people who were hurt in the wreck. So if you go to a trauma center like Grand Strand, $25,000, it goes quickly.
Pearl Carey (16:33):
What happens then?
Dirk Derrick (16:34):
Well, if you don't have underinsured motorist coverage and the person who hits you has no assets, that's it.
Pearl Carey (16:40):
Oh, okay.
Dirk Derrick (16:40):
That's probably the toughest conversation we have with clients. When somebody comes in, you can have terrible conduct, drunk driver, terrible damages, $2 million of damages. Oh
Pearl Carey (16:53):
No,
Dirk Derrick (16:53):
That person has 25,000. The minimum limits in South Carolina and they have no assets. They got drunk on their own, didn't go to a bar to get drunk, and you have no underinsured motorist coverage.
Pearl Carey (17:07):
That's it.
Dirk Derrick (17:07):
Your case is worth 25,000 bucks.
Pearl Carey (17:09):
Oh no. How heartbreaking
Dirk Derrick (17:12):
100% of those people tell me is, well, that's not fair and it's not fair, but it is. It's a blood and a turnip again. And so how to protect yourself from that situation is to get underinsured motorist coverage up your policy, get underinsured motorist coverage. And in South Carolina, that underinsured motorist coverage is actually stackable for all the cars that your family members are driving inside your household, but they're not driving inside your household. So if I'm a family of four, we got four cars
Pearl Carey (17:47):
That goes for all four cars.
Dirk Derrick (17:49):
I've got 250,000, 500,000 in UIM coverage on each car and somebody hits me, now I can stack those, so I can recover up to a million dollars individually by stacking those four policies. If we were riding in one of those cars at the time of the wreck and I got a cumulative amount of $2 million, so that million dollar single, $2 million cumulative goes on top of that, minimum limits on the at-fault driver. That's getting deep. That's almost like a class at law school about insurance coverage, but
Pearl Carey (18:27):
Right. I was going to say, pull up the whiteboard,
Dirk Derrick (18:28):
let this be the takeaway, get underinsured motorist coverage and get a lot of it. It's a sad situation when somebody has bad damages and there's not enough coverage
Pearl Carey (18:37):
Because there's just nothing you can really do at that point. That's it.
Dirk Derrick (18:39):
That's correct.
Pearl Carey (18:40):
So I know you talked a little bit about the underinsured coverage. What happens if the other person involved in the accident doesn't have any insurance at all?
Dirk Derrick (18:48):
You file under your uninsured coverage, you would file a claim on your uninsured coverage for the negligence or recklessness on behalf of the at-fault driver. That is also stackable if you're driving one of your own vehicles. So if you have four vehicles in your household, you can stack those coverages to pay damages up to that amount. So the same example, the drunk driver got drunk on his own, wasn't at a bar, has no insurance, and you have a million dollars worth of medical expenses and you got $250,000 of uninsured motorists and you were in your vehicle at the time of the wreck. You can stack those four policies in your household and have a million dollars worth of coverage.
Pearl Carey (19:35):
So let's take that same example then, and let's say maybe there was a DR Shop involved, there was some Dr Shop liability there. Does that mean you could maybe sue the bar that was Overserving the drunk driver?
Dirk Derrick (19:46):
Yeah, the DR Shop liability is when in South Carolina, a bar or restaurant overs served somebody when they knew that person was intoxicated or should have known their person was intoxicated. They now have liability. What happens is that's on top of the liability coverage of the at-fault drunk driver,
(20:11):
And that's on top of the uninsured or underinsured coverage that the injured person has. So that's real important to get full recovery for a lot of people who are injured by drunk drivers in South Carolina, we got terrible numbers in South Carolina. We got a lot of bars along the coast of South Carolina and there's a lot of people here on vacation making bad decisions. So when that person goes to a bar, they overserve him. They knew or should have known he was intoxicated, he leaves the bar and hits someone. Now both the bar and the drunk driver have liability towards the injured party. And in that case, those cases we really need to investigate quickly.
(20:59):
Anytime we get a case that involves a drunk driver, we're going to find out as quickly as possible where they got drunk at. Where did they go to a bar where they had a house, whatever. If they're at a bar, we are going to serve a letter of preservation to the bar, telling them, do not destroy your credit card receipts. You need to preserve the surveillance cameras in your bar preserve anything that has to do with the person who was injured because of this drunk driver. And we don't try to get that information. A lot of times they won't give it to us and we end up having to file suit to go get it. But that evidence and the witnesses in that bar can disappear very fast. So we want to get that as soon as possible. And sometimes if our client doesn't have underinsured motorist coverage and the drunk driver has limited coverage or no coverage, if we can't get the information on the bar that overserved them, then our client doesn't recover.
Pearl Carey (22:01):
Wow. But if you can, that might kind of open up a whole other pathway.
Dirk Derrick (22:06):
In South Carolina at this particular time, bars and restaurants have to have a million dollars worth of coverage for over-serving people. Now they're fighting that. Now they're trying to fight and dodge some of that responsibility, open the State House. But right now they have to have coverage. They didn't have to have coverage. I think until 2017 it changed. So before 2017, if the borrower served them, they had no coverage, you had no assets, you couldn't really recover anything from them either.
(22:37):
But right now, they do have to have coverage in South Carolina.
Pearl Carey (22:40):
So that might change in the future then
Dirk Derrick (22:42):
Hope not. But there's a movement by the insurance industry and by some bars and restaurants and tried to take that responsibility off of them. They say they can't afford the coverage now because of so many claims, which my response would be clean up your act and quit serving drunk people.
Pearl Carey (23:01):
So we'll kind of have to see what happens with that. I know we talked about that in our other podcast. So I know that we talked about the importance of having underinsured motorist coverage. Is there anything else that you can think of that can kind of, I don't want to say ruin a case for a potential client, but is there anything else that plaintiffs should know before calling you guys that could kind of sway their case in one way or another?
Dirk Derrick (23:22):
That's broad. That's a broad question. If I was given advice to people before they retain an attorney is be honest. Keep everything private. Do what you need to do for your own health and the health of your family and get things investigated as quickly as possible.
Pearl Carey (23:42):
So kind of going back to our example of the three legs of liability, collectability and damages. What can you kind of do to ensure a strong liability leg or a damages leg or a collectability leg
Dirk Derrick (23:55):
We investigate and then build those three legs, right? Let's go liability leg, the liability. Who caused the incident? Did someone breach a duty? Was somebody reckless? There's a lot of facts that go into that, but we're in our typical car wreck. We don't get a private investigator on it to talk to the defendant who take photos of the vehicles, take photos of the scene, see if there's gouge marked, see if there's skid marks, see if there's any surveillance at the scene of the wreck going back down the road, which may show something. Pull the data from a car. If we think somebody was speeding to show what the speed was, look at the scene, talk to the witnesses, talk to anyone who knows anything about it. We'll make a decision after we find out the coverages, whether or not we're going to do an accident reconstruction, do we want to bring an reconstructionist in to prove and show the jury what happened? So that's how we build the liability. We also want to know, a lot of times you want to know things that you can't get on your own. For instance, if someone gets reentered by somebody going 45 miles an hour, they never touched the brakes. They were distracted or drunk
Pearl Carey (25:11):
clearly.
Dirk Derrick (25:12):
So if the officer didn't see any signs of intoxication, we want to know what they were distracted by. And most of the time it's the telephone. So we will ask the at-fault driver and the insurance company, Hey, we need the phone records.
Pearl Carey (25:26):
So would you kind of say that the liability leg is the thing that has to get investigated right away?
Dirk Derrick (25:31):
Well, we got enough people working on the case that we're doing all three legs at the same time.
Pearl Carey (25:36):
Okay. Right away
Dirk Derrick (25:37):
We have a team approach where we have an investigative paralegal, an attorney who are immediately working on the liability leg. We have a paralegal who's immediately working on the collectability leg on finding out all the coverages. And then we have three paralegals who are working on the medical aspect and the damaged leg. So we can do 'em all at the same time. But from the liability standpoint, you just prove, you just have to do whatever you have to do to show exactly what happened. Cause another type of case, we do a DR shop. When a bar has overserved someone, what the investigation on them is to get their surveillance, get their credit card records, get the names of everybody who was working for 'em, see if they were waitresses and their bartenders were trained on how not to serve somebody who's drunk. We'll get a toxicologist expert in after we get blood alcohol levels. That expert can testify as to the at-fault person's appearance back when they were serving them drinks. You have to back up in time to see if the wreck happens an hour after they left the bar and they blow a 2.0 and it hadn't had anything to drink after they left the bar. A toxicologist will come in and say, well, if he had a 2.0, there he goes. What he had at the time, they served him his last drink.
(27:04):
He can show what his blood alcohol level and that toxicologist can also say someone with a 2.9 would've been showing these symptoms. Anybody should have known he was intoxicated.
Pearl Carey (27:16):
So in order to get that toxicologist into look at the blood alcohol level, does that mean you have to send in that preservation order first to the dream shop?
Dirk Derrick (27:23):
Well, we send in a preservation letter to preserve anything to do with the bar. Okay. A lot of times when you get to a point where at-fault, drunk drivers don't often say, yeah, here goes my medical records. Here goes what my blood alcohol was. So sometimes you have to file a lawsuit to have the ability to subpoena and get those documents to prove the case, but that's part of the investigations.
Pearl Carey (27:48):
So now kind of turning to damages, what do you have to do to investigate that leg
Dirk Derrick (27:52):
Damages? Damages is a unique leg in that the injured party plays a huge role in the development of that leg. The liability, whatever happened to cause the injury has already happened,
Pearl Carey (28:07):
Right? It's done.
Dirk Derrick (28:08):
The collectability, whoever had coverage, whoever had assets at the time of the incident that's done. It really can affect the damaged leg moving forward from the incident going forward. The injured party does have a say so in those things. So if they're doing everything their doctor tells 'em to do and they're trying their best to get better and to get back to their lives, they are strengthening their damaged leg. If they're not doing what the doctor tells 'em to do, they're weakening their damaged leg. But investigating that leg, we always look at priors. We go backwards
(28:47):
To see what we can show the health of that person was from the day of the incident, and then we going forward. And the damaged leg requires experts more than other legs. You got your treating physicians, your treating physicians are going to give you a diagnosis. They don't give you a prognosis. They don't tell you what kind of treatment they need. At some point in time that person's going to reach what we call maximum medical improvement. That's when the doctors say, we have done everything we can do. This person is as good as he will be, and here goes what his permanent restrictions are going to be moving forward or his permanent condition is going to be. And he goes, well, his permanent impairment rating is, and he goes, whether or not he can work moving forward or what additional medical treatment he going to need going forward.
(29:38):
All of that takes expert testimony. So part of building that leg is getting the doctors who give you opinions. And a lot of times we get it from treating physicians, sometimes treating physicians are busy, they're treating people. That's their profession. And we'll need to get another expert who will not only look at what that treating physician is doing, but also look at all these past medical records and give opinions based upon all of the health of the plaintiff, give us opinion on causation, what was caused by the incident and what was caused by an underlying condition, or was this condition that he's treating for caused by the wreck or was it aggravated from something he had before
Pearl Carey (30:24):
Preexisting?
Dirk Derrick (30:25):
So that takes a lot of expert testimony and medical testimony to show what the damages are. You'll need a life care plan. If they don't need future medicals, you'll need an economist to convert it back to present day value. There's a lot of things because when you go to court or when you settle the case, it's over. You don't come back 10 years from now and say, Hey,
Pearl Carey (30:52):
What about
Dirk Derrick (30:53):
This thing's gotten worse? Well, you can't do that. You got a three year statute of limitations in South Carolina. But once you settle, the case is tried, it's over. So what we try to do is find out as much as we can from the doctors to tell us that based upon reasonable degree of medical certainty, what is the most likely outcome for our client? And that's the standard. Got it. It's more likely than not based upon a reasonable degree of medical certainty that this person will need medical treatment or this procedure in the future, and then we have to determine what the value of that is.
Pearl Carey (31:31):
So how does it change your case? If the doctor looks at you and says, Hey, your client or the plaintiff has a preexisting condition, how does that change your case?
Dirk Derrick (31:42):
Well, if you're over 30 years old, you got preexisting condition. It's called wear and tear. So that's very, very common and it's very common for the insurance industry to use that as a reason not to pay claims.
Pearl Carey (31:56):
Yeah, I was going to say,
Dirk Derrick (31:58):
Once we start walking, we start wearing out. So most people have preexisting conditions. The question is, and preexisting conditions actually can help you on some cases and can hurt you on some cases, on cases that they help plaintiffs. South Carolina has a law, and the purpose of the law is to protect people from birth to death. We call it the eggshell law. Basically it says if someone is negligent or reckless and they hit somebody and hurt them, they cannot then say, well, if they had been healthy, they wouldn't have got hurt. They take the person as they find them. So if you hit someone who's brittle like an eggshell and you bust them up, you're responsible for
Pearl Carey (32:47):
It. You still busted them up.
Dirk Derrick (32:49):
So in that case, all these cases we build, I think the stronger your case falls into common sense. If you watch these focus groups, if you watch these jurors, everybody's got common sense. So if they see a fender that's not hurt very bad, and you rode by that on the road, you say, well, nobody got hurt. That's just a fender bender. But if you saw this person's spine and how weak it was before this impact and that she was having no symptoms to this body part, and then immediately after she had symptoms and needed surgery, common sense says, well, this wreck caused it.
Pearl Carey (33:30):
Right, or it aggravated a preexisting condition.
Dirk Derrick (33:33):
Correct.
And under South Carolina law, they're entitled to recover for that injury. So it makes a case fall into the path of common sense. And the other way it hurts people, if you have a preexisting condition is let's say you have a preexisting neck problem and it's bothering you. You're getting shots, you're getting treatment, you're getting physical therapy, and while you're getting physical therapy, you get in a wreck and it aggravates your neck. So now we're trying to determine aggravation this preexisting condition and whether or not is a temporary aggravation or a permanent aggravation. So we're looking to see whether or not there's been any changes in the imaging before and after.
Pearl Carey (34:19):
But if there's nothing in the imaging, then that's it. I'm assuming,
Dirk Derrick (34:23):
Well, that's not it, but it weakens the case. If there's changes in the imaging that you can show a jury that's okay because of the eggshell plaintiff law. If there's no changes and the person just saying, it's bothering me more, then it comes down to credibility. But it weakens the case if you're getting treatment and then you aggravate it and then you have to determine when they're back to baseline. It is common sense. If you have a condition and get hit, it would aggravate it. But if there's no changes in the imaging, it's common sense that unless something has changed structurally at some point in time this person should get back to baseline.
Pearl Carey (35:10):
So we've talked a little bit about how doctors can help build your case and help assess damages in a certain way. What can a client do to help their case?
Dirk Derrick (35:20):
I would say be honest. Do what the doctors tell 'em to do and just do everything they can do to help themselves recover.
Pearl Carey (35:28):
So although the term collectability might be common knowledge for anyone that works in a law firm, what does that mean to the average person or how might that be defined?
Dirk Derrick (35:38):
It is the ability to get compensation for our clients. That's got to come from one of two sources. Mainly it's going to come from insurance coverage primarily, and it's going to come from assets. If the damages exceed insurance. The problem is from an asset standpoint, when cases happen because of an individual's negligence or recklessness, very rarely do they have assets that can be collected in South Carolina to pay for damages.
Pearl Carey (36:12):
So what will be an example of an asset that you could collect from?
Dirk Derrick (36:16):
Well, it's kind of a two step process. Number one, does the client really want to go after somebody's assets for just simple negligence? If somebody just makes a mistake, do you want to go after their assets and take assets away from if somebody's drunk? It changes my perspective a lot if somebody goes out and acts recklessly. But that's up to our clients. We have cases where people who have had assets, they've had rental properties, so they've had real estate investments that they have to help pay for the damages. You hope those people have insurance, and most people with assets have insurance, but if they don't have enough legally, you can get a judgment against them and go after assets. South Carolina has a statute that protects assets to a certain extent. It protects so much equity in the house. If you're married, it doubles that equity. Okay. So there's a lot of things you can't get. Gotcha. It really, really comes down to somebody who has a bunch of free real estate unencumbered by mortgages.
Pearl Carey (37:34):
So paid off is what you're saying? Right. Okay.
Dirk Derrick (37:36):
And there's been cases like that where those individuals have gone and gotten a mortgage on the property and contributed to the payment of damages and then just paid it back.
Pearl Carey (37:49):
Oh, okay. Gotcha.
Dirk Derrick (37:50):
So I think I've been doing it 35 years since we've probably had five,
Pearl Carey (37:58):
Really
Dirk Derrick (37:59):
Five or eight cases where people contribute assets. It's just unusual.
Pearl Carey (38:03):
So why is it unusual? Do people just not want to do it or, I know you said that sometimes there's not a lot of assets you can pull from.
Dirk Derrick (38:10):
Most of the time there's no assets. I mean, we run an asset check to do our due diligence and show our clients so they can make a decision. Most of the time they don't have assets. And most of the time our client's not interested in other people's assets. They want to go after insurance, especially if they have enough liability insurance and underinsured motorist coverage on the back end of it to cover all the damages. If there's not enough liability and they don't have underinsured, then they have to make a decision. And if we represent 'em, we'll do what they want us to do, but it's up to the client.
Pearl Carey (38:44):
So you're just saying it's not typical that someone would want to go over those assets?
Dirk Derrick (38:48):
It is not typical that we will get assets to help pay for damages. Mostly because people don't have them. By the time you'd go through the process of getting a judgment, doing supplemental proceedings, finding out what the property is, what the mortgages are. A lot of times it's just when it's all said and done, there's not be enough assets to make a difference.
Pearl Carey (39:14):
Gotcha. So I know we talked about assets in terms of our collectibility leg. What else kind of goes into investigating collectability?
Dirk Derrick (39:22):
Well, as soon as we hired, I told you we have an investigative team who their job is to find out insurance coverage. Every insurance coverage that could apply. If you think of insurance coverage, kind of like a totem pole, the top coverage is the liability coverage on the vehicle in which the at-fault driver was driving. Second level is either an employer's coverage that person was working at the time, or if that person was driving a non-owned vehicle. If he has liability insurance on his own car, that can come in as secondary liability insurance.
Pearl Carey (40:02):
Okay.
Dirk Derrick (40:03):
So if you're driving my car and you hit somebody or watching a TikTok video, which you Ben never do.
Pearl Carey (40:10):
Never.
Dirk Derrick (40:11):
Okay.
(40:11):
At first they're going to come after my coverage and then they go after your coverage. And because you're working here, they could come after my coverage on the car, the firm's coverage and then your coverage.
Pearl Carey (40:25):
So in the case of secondary coverage in that example, would that mean that less would be taken from my coverage or how would that work?
Dirk Derrick (40:32):
Yeah. Well, yeah. I mean the first you have damages, my coverage is going to pay 'em up to the policy limits. If you were not working at the time and just driving my vehicle, then you for fun. Yeah, fun, but your coverage going to kick in second, if it was work-related, my business coverage on kick in. Secondly, and then yours may or may not apply depending on the words of your contract, whether it excludes work of the vehicle.
Pearl Carey (41:00):
And so that would also depend on how bad the accident was and what the damages were. Right.
Dirk Derrick (41:04):
Absolutely.
When we're investigating coverages, we're not even thinking about what the damages are going to end up. We usually have all the coverages identified within 45 days of being hired. So we look and say, we got this coverage, this coverage, this coverage. We have coverages and amount of blank dollars and we have assets, we don't have assets. So within two months of us being hired, we kind of know in most cases what the are. Now, if it's a trucking company, we won't know until we file suit and get all their policies because they have layers and layers and layers. Sometime in those trucking cases, if it's a premise liability case, they're not going to give us their coverages until we file suit. Under South Carolina law, the auto insurance carriers have to give us the coverages.
Pearl Carey (41:57):
So they can't withhold that.
Dirk Derrick (41:58):
When I started practicing law, they didn't have to. We passed the law that says they got to give it to us. So we can ask 'em, what's your coverages? Send 'em the necessary documentation and they'll send it back to us. So we know that within 45, 60 days of being hired. Gotcha. And then you'd look at that and we know that trucking companies have mandatory insurance. We know most premise liabilities, businesses and hotels, they have insurance. So we know in car accidents, non-commercial at-fault drivers, we know their coverages usually within 45 or 60 days. When you're talking about commercial policies or premise liability cases, we won't know those for sure. The total until a suit's been filed, and you get those, they have to give them to you when you request them in litigation.
Pearl Carey (42:43):
So I know you said you have about 45 to 50 days to really find out what the coverage is. Is that due to a certain amount of time the insurance company has to let you know or how does that work? How long does the insurance company have?
Dirk Derrick (42:53):
Yeah, I think it's 30 days after request it. They have to give it to us. Gotcha. So there's a time they have to give it to us. A lot of times they tell us verbally on the phone and then we'll get a letter to confirm it.
Pearl Carey (43:05):
So now that we have a pretty good base understanding of collectability damages and liability, that all kind of play into our bar stool example, how do they all support each other?
Dirk Derrick (43:14):
They're all very related.
Pearl Carey (43:17):
Okay.
Dirk Derrick (43:18):
Like I said, we know collectability insurance coach, we know that quickly. We usually know that before the full extent of damages, the liability. We want to know that within 60 days. We want to find out every fact that you can find out without litigation within 60 days. So two months into our representation, we want to know the strength of those two legs and then the damage leg, it continues to be billed until the person has reached maximum medical improvement. And we got all these opinions, but they play together. These focus groups we do the degree of damages can have an impact on the liability question. And the act of the at-fault driver, whether it's just simple negligence or reckless, actually has an impact on how much they pay for the damages
Pearl Carey (44:13):
Really,
Dirk Derrick (44:14):
Even though they're separate legs. So a bad actor, a drunk driver can increase the value of actual damages as well as punitive damages because of the degree of recklessness. So they play together, those two play together. The collectability is kind of sitting there. I say, Hey, whatever you get out of that, this is the max you're going to be able to recover. But the other two kind of play together.
Pearl Carey (44:42):
So collectability is kind of all encompassing of the other two legs? Yes. Gotcha.
Dirk Derrick (44:46):
It doesn't set the value of your case, but it's often sets the max value of your case.
Pearl Carey (44:53):
And is that kind of what juries determine how negligent a person is? How reckless they are?
Dirk Derrick (44:59):
Correct. Okay. The jury has no say so in collectability, unless there's a question regarding whether someone was working at the time or whether someone had permission to drive a car, that can make a difference. If I did not give you permission to drive my car and you stole it out the parking lot, then my insurance company could not deny coverage.
Pearl Carey (45:22):
So then my secondary insurance would then maybe be primary. That's correct.
(45:25):
Gotcha.
Dirk Derrick (45:26):
So you got to have permission to have my car, otherwise you're stealing it. So don't take the keys off my desk. Okay.
Pearl Carey (45:32):
I'm looking around for them right now.
Dirk Derrick (45:35):
So there's facts like that that a jury can have a say so, but usually they're determining was this negligence, was it reckless? And what part did the plaintiff play in it? Because the plaintiff, because of comparative negligence, can reduce the value of a claim. So that's part of the liability question, trying to show that the plaintiff didn't do anything wrong. In South Carolina, we have a law called comparative negligence, and what that says is the jury gets to decide how much the at-fault driver who we're calling the at-fault driver, contributed to this wreck happening. Were they negligent and they contributed these damages. They also look at the plaintiff and said, did the plaintiff do anything negligent? How much did they contribute?
Pearl Carey (46:25):
Okay.
Dirk Derrick (46:26):
They come up with what part they both played in it to come up with a hundred percent responsibility of the claim.
Pearl Carey (46:34):
Gotcha. And that's maybe where that honesty part comes into play in terms of the plaintiff and making sure that they're going to the doctor and doing everything as recommended. That's right.
(46:42):
Gotcha.
Dirk Derrick (46:43):
They're looking at everything. They look at everything to see if the plaintiff did everything right
Pearl Carey (46:48):
Posted on social media, those types of things.
Dirk Derrick (46:50):
They're looking at everything and they're looking at who caused the incident slip and fall case. Well, was there a defect? Did the owner of the facility know about it or should they have known about it? Did they cause it? And did the plaintiff protect herself or herself by being careful? And in a car wreck, same thing. How much of the faults on the plaintiff, how much is on the defendant in South Carolina, whatever verdict or whatever damages come out, it is reduced by the percentage or fault of the plaintiff.
Pearl Carey (47:24):
So they could get less damages if they're found to be at fault at all.
Dirk Derrick (47:27):
Let's say there's a million dollars of damages. Yeah. The jury finds the plaintiff 30% at fault, then the plaintiff's only going to collect 700,000. If the jury finds it's a 50 50 case, they both are 50% at fault. That million dollar verdict becomes 500,000. If a jury finds that the plaintiff was 51% of fault and the defendant was only 49% of fault, the plaintiff gets nothing.
Pearl Carey (47:55):
Nothing. Yeah.
Dirk Derrick (47:56):
The plaintiff's negligence exceeds the defendant's negligence. The plaintiff in South Carolina gets nothing.
Pearl Carey (48:03):
And are some of those things that could kind of push that over the edge from the 50 to the 51%, could that be posting on social media or maybe not getting evidence right away? Are those the types of things that kind of take it from that?
Dirk Derrick (48:16):
No, those are the things. Those are the types of things that the other side is looking at to see if they can find facts to increase the negligence on the plaintiff's part. Right. Let's say my post is something on social media right afterwards and in that post they say something, I was listening to this TikTok and this person came and hit me. Or they just admitted they were distracted. So their distraction plays into the formula
Pearl Carey (48:47):
And then that's evidence.
Dirk Derrick (48:48):
That's evidence.
Pearl Carey (48:49):
Yeah.
Dirk Derrick (48:49):
So like I said, from our standpoint, we're looking for every fact that exists in the world as to why this happened and what everyone was doing at the time. And the insurance companies doing the same thing. They're trying to find any bits of evidence they can find through your social media, through witnesses, through anywhere that says that you are partially at blame. So they're doing the same thing on their side.
Pearl Carey (49:14):
So honesty and getting the facts is key.
Dirk Derrick (49:17):
Correct.
Pearl Carey (49:18):
So let's say after looking at all these factors, there's someone that's still a little bit confused on what the validity of their claim is. Are there any next steps you'd recommend in order for them to figure that out?
Dirk Derrick (49:30):
If someone has a question about validity of a claim, they can contact us. We often can tell people on the phone if we know there's not a valid claim, if there's facts that the state has not recognized as being a civil cause of action, we can tell 'em that.
Pearl Carey (49:50):
You can let 'em know.
Dirk Derrick (49:50):
Yeah. If there's no damages, that's bad act, but no damages. We can let 'em know if it's a bad action that we know there's no way that's going to be covered by insurance and that person probably has no assets, we can let 'em know that too. But we sign up a lot of cases when we don't know the strength of the legs. I mean, until you investigate it, you don't know. And in those cases, we sign up cases, we tell people very often we say, Hey, there could be facts here that will give you a valid claim. And there may be facts that show that it's not a valid, but if you'll sign up with us, we will investigate it. We'll find out everything we can find out about it, and then we'll come back to you and give you the truth about what it shows.
Pearl Carey (50:37):
Give them a valid answer.
Dirk Derrick (50:38):
And if we run into a roadblock and they have no valid claim, we'll tell 'em that and we can close the file. We won't charge 'em any money. If we spend money on costs, we eat it. But we will have investigated and they will have known whether or not there's a valid claim.
Pearl Carey (50:55):
So what you're saying is that if someone calls you up and asks about their case, you're going to take a look at the three legs of the bar stool and give them your accurate answer?
Dirk Derrick (51:04):
That's correct. And if it needs investigation, which a lot of 'em will need investigation, we'll investigate it. Yeah. Take a look at it. We understand that there's going to be cases that we're going to sign up and we investigate that the facts aren't going to be there, but until you look, you don't know. Right.
Pearl Carey (51:20):
Absolutely. Thank you so much for giving such valuable information about the truth, about the validity of your claim. I know I learned a ton. I'm sure viewers did as well. And we look forward to seeing you next week.
Dirk Derrick (51:32):
Looking forward to it. Thank you. Thanks.
Voiceover (51:35):
Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to [email protected]. If you would like to speak to us directly, call us at (843)248-7486. If you find the podcast valuable, please leave us a five star review and share The Legal Truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or Workers' Compensation claim.
Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast located at 90 North Main Street, Conway, South Carolina. Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public. Use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers and the user. While the information on this podcast is about legal issues, it is not intended as legal advice and should not be used as a substitute for competent legal advice from a licensed professional attorney in your particular state. Anyone seeking specific legal advice or assistance should retain an attorney.
Any prior results mentioned do not guarantee a similar outcome. The content reflects the personal views and opinions of the participants in the podcast and are not intended as endorsements of any views or products. This podcast could contain inaccuracies. The information contained in this podcast does not constitute legal advice and is not guaranteed to be correct, complete, or up-to-date as laws continue to change. In this podcast, you'll hear information about focus groups. Please note that not all of the firm's cases are presented to a focus group. Additionally, when speaking about juries or jurors in relation to a focus group, we are speaking of focus group participants and not actual trial juries or jurors.
