Articles

You’ve been in an accident – now what?

Dealing with an insurance company after a car accident can be a time-consuming hassle. While you are worried about mounting medical debt and getting back to work, insurance adjusters are difficult to get on the phone, and when you do talk to them, they make time-sensitive, burdensome demands. We understand the difficulties and confusion in the insurance claims process. These are answers to frequently asked questions to help:

What should I do first?
Your first concern is your health. Seek the advice of a medical professional who can help you heal and record your injuries.

Should I take photographs?
Yes, it is important to document injuries and property damage. You will need photos to prove your claims. Take pictures even though your insurance adjuster has probably done the same.

The insurance company wants me to provide medical records, a recorded statement, or a release? What should I do?
Do not sign any papers until you consult an attorney – attorney consultations are usually free. Once you sign a release of claims, your case is over. Be wary of an insurance company that wants to settle before you have seen a doctor or while you are receiving treatment. Be careful – anything you say to an insurance adjuster can be used against you in valuing a claim.

What is an accident report?
This report is prepared by an officer at the scene of the accident. It is used to officially document the circumstances of the accident and can be used in settling your claim. Be sure to read the accident report, as it can answer many questions.

North Carolina is an at-fault state. What is an “at-fault” driver?
The at-fault driver is the one who caused the accident. The at-fault driver’s insurance company must pay for the damage to your car and for your personal injuries. If the at-fault driver has no insurance, then you should have coverages on your insurance policy to pay your claim.

What is contributory negligence?
Currently, only three States in the United States follow the doctrine of “Contributory Negligence,” and North Carolina is one of them.

What this doctrine says is that if an injured or wrongfully deceased person is found to be even as little as 1% at fault for his or her injuries or death, then the plaintiff gets nothing from the defendant, despite the fact that the defendant was still 99% at fault for the subject injuries or death.

After a car wreck, an insurance adjuster may ask for a recorded statement or for you otherwise to discuss how the accident occurred. What you say may be used to argue or suggest that you were in some degree at-fault, and the insurance company might use this as a way to try to deny your claim.

How do I pay my medical bills?
Use your health insurance to pay your medical bills. Unpaid bills affect your credit and reduce the amount of money you receive at final settlement. If you do not have health insurance, call us… We can help by reviewing your options for other ways to pay for medical treatment.

How do I pay for vehicle repairs or replacement?
If you were not at-fault in the accident, then the at-fault driver’s insurance company will pay for your car repairs and a rental car while your car is in the shop. If your car is totaled (the repair costs are 75% or greater than the car’s value), you will be paid the total current retail value of your car. If you have collision coverage on your auto insurance policy, it may also help cover the costs of auto repairs regardless of which driver was at fault.

How is the value of my case determined?
If you were not at-fault in the accident, then, you are entitled to receive money from the at-fault driver’s insurance company for your injuries including medical bills, lost wages and expenses, pain and suffering, emotional distress, and resulting disabilities and scars. Compensation will also include costs to repair or replace damaged property.

When will I receive compensation?
You will receive compensation for your claims when your case is resolved either through a settlement or after obtaining a judgment in Court. We can talk to you in helping to determine when the time is right either to settle your case or go to Court, and we can provide our experience to maximize your compensation for your injuries.

How long does the adjuster have to respond to my demand?
After submitting a demand package with all of your medical records and bills, within 30 days, the insurance company must pay the claim as submitted, offer an alternative amount as a settlement, deny the claim, or advise you in writing that your claim is still under investigation. When a claim has been settled, loss and claim payments should be delivered within ten business days. There are very important deadlines what have to be met when making insurance claims and a personal injury lawyer can help you meet the deadlines to receive the protections you deserve.

If my claim is denied, do they have to tell me why?
Insurance companies are required to provide you with written explanation as to why your claim was denied. This explanation should cite any law(s) or policy provisions that may be applicable to the company’s denial of your claim.

What is UM/UIM coverage?
Uninsured Motorist (UM) coverage is insurance under your auto policy that provides compensation for injuries inflicted upon your or a family member as a result of an uninsured driver’s negligence. An uninsured driver is someone who did not have insurance, or whose insurance company denied their claim or was not financially able to pay it. A hit and run driver also can count as an uninsured driver as it relates to bodily injury.

Underinsured Motorist (UIM) coverage is insurance under your auto policy that provides compensation for injuries inflicted upon your or a family member where the at-fault driver has insurance limits that are too low to cover your expenses. Underinsured drivers usually purchase only the minimum coverage required by law, which in North Carolina is $30,000 per person and $60,000 per incident of bodily injury liability coverage.

North Carolina does require Uninsured Motorist (UM) coverage, which is usually bundled with liability coverage, which is also required by law, so you do not usually need to purchase this separately.

North Carolina does not require Underinsured Motorist (UIM) coverage, but it can be purchased at your election, and is an important source of compensation in serious accidents.

Is my new car covered under my old insurance policy?
No, your new car is not automatically covered under an existing policy. For coverage on your new vehicle, you must provide your insurer with proper notification for coverage to be applied.

What is MedPay coverage?
MedPay coverage is designed to pay the medical bills of all passengers in your vehicle if they are injured as a result a car accident, regardless of who was at fault. MedPay may also provide coverage for blood relatives who reside in the same household and any vehicles driven by them. MedPay coverage is typically sold in amounts ranging between $1,000 and $10,000. There are some MedPay policies for as much as $50,000 to $100,000.

Sarah JohnsonYou’ve been in an accident – now what?
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Business Interruption Insurance & COVID-19

In North Carolina, bars, restaurants, and most retail businesses are suffering large financial losses due to COVID-19.  Many will seek insurance coverage under the business interruption provisions of their commercial property policies, and their claims will be denied.

Last week, four insurance conglomerates –American Property Casualty Insurance Association, National Association of Mutual Insurance Companies, Independent Insurance Agents and Brokers of America, and Council of Insurance Agents & Brokers – issued an official statement that “[b]usiness interruption policies do not, and were not designed to, provide coverage against communicable diseases such as COVID-19.”

Many insurance companies have issued bulletins stating that COVID-19 business interruption claims are not to be paid in most circumstances.

Famous restaurateurs in Louisiana and California have already filed lawsuits against their insurance carriers for denying their COVID-19 business interruption claims.

More lawsuits are certain to follow.  Indeed, if insurers were required to pay such losses, it would significantly diminish their profit margins.

Can the insurance industry get away with not paying these claims?

Most commercial insurance policies cover lost revenue resulting from:

  • damage to the policyholder’s own property (traditional business interruption coverage);
  • damage to the property of a customer or supplier, or someone further out in the supply-chain (contingent business interruption coverage); and
  • government orders flowing from property damage within an authority’s jurisdiction (civil authority coverage).

Traditionally, for any of these coverages to be triggered, the legal analysis of most such policies required physical damage to property, somewhere.

Under this legal construct, the relevant inquiry is whether COVID-19, legally, causes physical damage to property.

At least some of our local officials believe it does. In line with other municipalities and counties, Durham’s Stay-At-Home Order states that “existing conditions [from the virus] have caused or will cause, widespread or severe damage, injury, or loss of life or property.”

Governor Cooper’s State-Wide Stay-At-Home Order references the risk of property loss at least four times, although it is not explicit in saying that the virus can or does cause property damage.

According to the CDC, COVID-19 can be contracted “by touching a surface or object that has the virus on it.”

The New York Times has also reported that COVID-19 remains on metal, glass and plastic for several days.

These, and other scientific facts, lend support to the notion that virus-particles on bars, restaurant tables, desks, merchandise, and office equipment results in physical damage to property.

Although there are no known North Carolina appellate decisions on-point, cases from other jurisdictions are instructive on whether COVID-19 causes physical damage to property.

In Gregory Packing, Inc. v. Travelers, a federal court in New Jersey held that covered property had been physically damaged, sufficient to trigger business interruption coverage, when ammonia was released into a facility, making the building unsafe for habitation. The Court stated “property can sustain physical damage without experiencing structural alteration.” The presence of the molecules of ammonia upon the covered property was enough to count as physical damage to the property and trigger business interruption coverage.

Likewise, in Motorists Mutual Insurance Co. v. Hardinger, a published opinion by the 3rd Circuit Court of Appeals, E. Coli in a residential water-well, which made the inhabitants sick, counted as physical damage to the property, triggering the applicable homeowners coverage. The Court wrote that what mattered was “whether the functionality of the property was nearly eliminated or destroyed, or whether the property was made useless or uninhabitable” by the presence of the bacteria.

In North Carolina, when a provision of an insurance policy is vague, it is to be interpreted in favor of coverage for the policyholder.  (See e.g. Williams v. Nationwide Mutual Insurance Co., 269 N.C. 235, 152 S.E.2d 102).  Courts in other States have found the meaning of “physical damage” in insurance policies to be ambiguous, and they have therefore expanded the definition in favor of covering losses.  (See e.g. Wakefern Food Corp. v. Liberty Mutual, 976 A. 2d 385). Such could be the case with COVID-19 and business losses in North Carolina.

What does this mean for my business interruption claim?

Strong legal arguments can be made that COVID-19 causes physical damage to property. In our view, the presence of the virus upon property should be sufficient to trigger business interruption coverages under many commercial insurance policies.

If COVID-19 is present upon covered property (i.e. an infected person comes into a restaurant and coughs on a table), and a resulting financial loss occurs (i.e. the restaurant must shut-down), traditional business interruption coverage should be triggered.

If COVID-19 is present on the property of someone in a business’ supply line, and a resulting financial loss occurs (i.e. an airline shuts-down due to virus exposure, and goods or people cannot move in the stream of commerce), contingent business interruption coverage should be triggered.

With respect to civil authority coverage, policies commonly provide this coverage for business losses when “an order of civil authority limits, restricts or prohibits partial or total access to an insured location provided such order is the direct result of physical damage at the insured location or within [a specified distance of the insured location].” For example, this coverage should apply to many of the restaurants and bars that have been shut-down in this State due to COVID-19 being present upon property elsewhere in the State, and therefore constituting “physical damage.”

Caveats

Insurance policies are different. The language and coverages in insurance policies are not identical. There may be exclusions in your specific policy that prevent you from making the arguments outlined above; however, do not let the language of your policy stop you from speaking with a lawyer.

For example, there are commonly exclusions in commercial insurance policies for physical damage caused by “contamination” or “pollution.” Viruses, specifically COVID-19, may or may not fall under the meaning and definition of these words. Remember, if there is any ambiguity in your policy language, it is to be construed in favor of coverage.

Also of note, in response to large losses from the SARS outbreak in the 2000’s, insurance companies began adding “pandemic” exclusions to commercial policies, in an attempt to void coverages for business interruption losses. If your policy does, or purports to, incorporate such an exclusion, there are still arguments to be made, among others, that the business interruption is not being caused by the pandemic but by the government action taken to prevent its further spread.

In Conclusion

If you have a business interruption claim that has been denied by your insurance carrier, you are not alone. Don’t give up. There are strong arguments to be made in favor of coverage and payment.

We’re here to help. Contact me (Robby Jessup) with any questions at (919) 821-7700 or [email protected] Remember, you should not wait to call a lawyer, as there are important time limitations on asserting your legal claims.

Robby JessupBusiness Interruption Insurance & COVID-19
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Vietnam Veteran Files Lawsuit Alleging Police Brutality

Rocky Mount Telegram
By William F. West
March 27, 2020

A Rocky Mount man who is a Vietnam War veteran has filed a civil rights lawsuit in federal court
claiming a police officer assaulted and wrongly arrested him approximately a year-and-a-half
ago outside his home in the Holly Street area of the city.

Harold Cox, in papers fled on Tuesday, claims officer Michael Lamm body-slammed him to the
ground on Sept. 7, 2018, and shattered his hip after he requested assistance from Emergency
911 to diffuse an altercation between two young women in his front yard.

The suit names as defendants Lamm, the city of Rocky Mount, ex-Chief James Moore, ex-interim
Chief Willie Williams and current Chief George Robinson.

The suit calls for a jury trial in U.S. District Court and for an awarding of an unspecified amount
of money.

One of Cox’s attorneys, Robby Jessup, of Raleigh, told the Telegram in a prepared statement on
Thursday that Cox is a Vietnam veteran, a retiree, a pillar in his community and a lifelong law-abiding
citizen.

“Mr. Cox did not deserve the serious and life-changing injuries that were inflicted upon him,”
Jessup said.

“This lawsuit was fled not only to seek justice for Mr. Cox but also with a hope to improve how
law enforcement departments train offcers, treat people of color and respond to citizens who
have called for help,” Jessup said. “Our lawsuit speaks for itself and we look forward to helping
our client see this matter through.”

READ FULL ARTICLE

Sarah JohnsonVietnam Veteran Files Lawsuit Alleging Police Brutality
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Hurricane Insurance Claims 101

Expanding in size, Hurricane Florence is continuing on a beeline toward Eastern North Carolina as an “extremely dangerous” Category 4 storm.

Catastrophic flooding and destructive winds are becoming very likely everywhere from the Triangle to the Coast.

Meteorologists are reporting that this storm may be comparable to Hurricane Hazel in the 1950s.

Nearly one in four homeowners and business owners in Eastern North Carolina can expect some level of property damage from Hurricane Florence.

In light of these odds, we have prepared the below tips for preparing for and making inevitable hurricane related insurance claims:

  1. Photograph the condition of your property before the storm.

Oftentimes, insurance companies will raise questions as to whether damage was storm related or pre-existing. If you have damage from a hurricane, you will want to be able to show your insurance company proof of your property’s condition immediately before the storm. This includes both real and personal property. Take your I-Phone and photograph the condition of the interior and exterior of your home or business. This includes furniture, fences, sheds, garages, attics, basements, trees and landscaping.

  1. Have copies of your insurance policies and/or declaration pages.

It is important to know what insurance coverages you have before a storm hits. Of equal importance, you need to review these documents to know how to quickly make an insurance claim if and when you sustain damage.  This should include but not be limited to any and all policies of car insurance, homeowners insurance, flood insurance, and business insurance that you have.

  1. If you have storm damage, make an insurance claim as soon as possible.

In catastrophes, insurance companies generally handle claims on a first come, first serve basis. If you call your insurance company immediately after the storm, you may experience long wait times, but be patient. It will pay-off in the speed at which your claim is adjusted. Likewise, don’t let someone put you or claim on the backburner. Be persistent in your communications. (As an aside, many companies now have apps or websites where you can make your insurance claims online, which may save you time on the phone.)

  1. Write down your claim number and keep it handy.

When you make an insurance claim, it is easy to overlook writing down your claim number. However, writing this number down and keeping it handy can save you a lot of time down the road. If you keep this number, insurance company representatives will be able to immediately find your claim each and every time you call.

  1. Keep Notes.

Take notes documenting every contact with your insurer, noting the person with whom you spoke, his or her contact information, the date that you spoke, and what you spoke about. After catastrophes, insurance companies are overwhelmed, and you should take the initiative in making sure your calls and correspondence make it to the right person and also that adjusters do what they promise. Additionally, if things go haywire with your insurance claim, it is important for your lawyer to get these notes down the road.

  1. Keep Receipts.

If you sustain storm damage, you have a duty to mitigate further damage to your home or business. This means you must make any and all reasonable temporary repairs to prevent further damage to your property. However, keep receipts for any expenses related to immediate repairs you had to make, as your insurer will generally be required to reimburse you for these expenses.

Likewise, keep receipts for any living expenses you incur (i.e. lodging & meals) if you could not return to your home in the wake of the storm. With wind claims, you should generally get reimbursed for such additional living expenses. If your claim is limited to flood insurance, additional living expenses might not be covered.

If you are a business owner, quickly develop a short-term plan for your business (i.e., open in temporary location, shut down etc.), and keep receipts/records for all purchases and services from the date of your loss until your claim is satisfactorily resolved.

  1. Photograph the condition of your property after the storm.

If you have storm damage, it is important that you photograph it, and that you photograph it before any temporary or permanent repairs are made to your home or business. Do not rely on the insurance company to document the damage to your property. Take the initiative and do it yourself. This instruction is not limited to real property and structures. If you have personal property that was damages in the storm, photograph that damage too.

  1. Know who you are dealing with.

When the insurance company sends out an adjuster, ask if he/she is an employee of the insurance company or an independent adjuster (I.A.). In catastrophes, insurance companies will oftentimes contract claims out to third-party companies. If you encounter an I.A., ask if they are authorized to make claim decisions and payments on behalf of your insurance company and ask for the name of the in-house company adjuster to whom the I.A. will be sending your information. If you have problems or issues with the I.A., having the contact information for the in-house company adjuster can be of great assistance.

  1. Flood versus Wind Damage

If you think you only have flood damage to your home or business, and you don’t have flood insurance, call your insurers anyway. Some homeowners and business policies that exclude damage related to flooding may cover damage from water and wind.

  1. Your vehicles should be covered.

Damage to your vehicles from downed trees and flooding should be covered by the comprehensive portion of your auto insurance. If your vehicle is damaged, promptly make a claim with your car insurance company and photograph its condition.

*Ask for help if you need it!

Most insurance claims are resolved on friendly and fair terms, but sometimes they are not. If you run into an adjuster who is making your life more difficult than it should be, arguing about what is or is not covered, or arguing with you or a contractor about the extent of damage to your home or business, call a lawyer immediately.

For a free consultation, you can reach me at [email protected] or (919) 821-7700.

Stay safe in the storm,

Robby Jessup

Robby JessupHurricane Insurance Claims 101
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Why Can’t The Jury Consider All Of My Medical Bills?

Prior to October of 2011, juries could consider the full amount of an injured person’s medical bills; however, that was changed when Rule 414 of the North Carolina Rules of Evidence was amended to read as follows:

“Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. This rule does not impose upon any party an affirmative duty to seek a reduction in billed charges to which the party is not contractually entitled.” (2011-283, s. 1.1; 2011-317, s. 1.1.)

Said slightly differently, evidence of medical expenses is limited to the amounts actually paid to satisfy the bills, and the amounts actually necessary to satisfy the bills not yet paid. This rule has become to be known as “Billed vs. Paid.”

This is important because the State Health Plan, Private Health Insurance, Medicaid, and Medicare all receive significant discounts when paying medical bills.

Before October of 2011, evidence of payments made by health insurance, Medicare or Medicaid were not admissible in trial and were not to be considered by a jury in determining damages for medical expenses.

Now, Plaintiffs generally can only present to a jury the amounts paid by health insurance or other collateral sources to satisfy medical bills.

To illustrate this with an example, Bob is crossing in a crosswalk, when a vehicle suddenly runs a red light and breaks Bob’s legs.  Bob is insured with Blue Cross Blue Shield of North Carolina.  Bob incurs $50,000 in medical bills at a local hospital for reconstructive surgery to his legs.  Blue Cross Blue Shield of North Carolina receives 50% off Bob’s medical bills pursuant to its provider agreement with the local hospital.  Therefore, under Rule 414, Bob can only present $25,000 of medical expenses to the jury.  Before October of 2011, Bob could present the full $50,000 of bills to the jury.

You may think that Rule 414 will not affect the pre-litigation value of a claim because it is a Rule of Evidence. This is not the case. The insurance companies calculate medical damages in settlement negotiations in the same way that the courts do during trial. They are adjusting what you may ultimately recover in Court, so they are using Billed vs. Paid. Over the past 6 years, Billed vs. Paid has significantly reduced the average value of personal injury claims.

Robby JessupWhy Can’t The Jury Consider All Of My Medical Bills?
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Contributory Negligence: The All or Nothing Doctrine

Currently, only three States in the United States follow the doctrine of “Contributory Negligence,” and North Carolina is one of them.

What this doctrine says is that if an injured or wrongfully deceased person is found to be even as little as 1% at fault for his or her injuries or death, then the plaintiff gets nothing from the defendant, despite the fact that the defendant was still 99% at fault for the subject injuries or death.

Most people believe that the doctrine of “Contributory Negligence” is unfair, and as a result, the vast majority of states have implemented a “Comparative Negligence” system.

With “Comparative Negligence,” a plaintiff’s total amount of recovery is decreased according to the percentage of fault assigned to the injured or deceased person. Whether the plaintiff is denied recovery once he or she (or his or her decedent) has reached a certain percentage of fault depends on which type of “Comparative Negligence” system the State has adopted. In pure “Comparative Negligence” jurisdictions, plaintiffs are entitled to recover some damages, even if they are assigned the greater portion of fault for causing the accident. For example, if the plaintiff is found to be 90% at fault and the defendant is found to be 10% at fault, the plaintiff still can recover 10% of the total damages from the defendant. Thirteen states have pure “Comparative Negligence” rules. Thirty-three states have a modified “Comparative Negligence” rule. Twelve of the states follow a 50% rule in which plaintiffs are barred recovery if they are found to be 50% or greater at fault for their injuries. Twenty-one states follow a 51% rule in which plaintiffs are not barred recovery unless they have been found 51% or greater at fault for their injuries.

In rare North Carolina cases, the “Contributory Negligence” defense can be overcome. If the plaintiff can prove that the defendant’s willful and wanton acts caused the injury, then the defendant cannot prevent the plaintiff from recovery. Likewise, if the plaintiff can show that the defendant had the last clear chance to avoid an accident and did not do so, then the defendant can still be held accountable even if a plaintiff is found to be one or more percent at fault.

Robby JessupContributory Negligence: The All or Nothing Doctrine
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You Can’t Say “Insurance” In The Courtroom

After an automobile negligence trial, jurors always ask, “[w]hy didn’t you tell us whether the Defendant had insurance?”

Generally, in North Carolina civil trials, lawyers are not allowed to present evidence as to whether or not the Defendant is insured.

Rule 411 of the North Carolina Rules of Evidence provides that evidence that a person was or was not insured against liability is generally not admissible.

In Fincher v. Rhyne, 266 N.C. 64 (1965), our Supreme Court stated: “[w]here testimony is given, or reference is made, indicating directly and as an independent fact that the defendant has liability insurance, it is prejudicial, and the court should, upon motion therefor aptly made, withdraw a juror and order a mistrial.”

Our Supreme Court explained its rationale as follows: “[t]he existence of insurance covering defendant’s liability in a negligence case is irrelevant to the issues involved. It has no tendency to prove negligence or the quantum of damages. It suggests to the jury that the outcome of the case is immaterial to defendant and the insurer is the real defendant and will have to pay the judgment. It withdraws the real defendant from the case and leads the jury to regard carelessly the legal rights of the real defendant. No circumstance is more surely calculated to cause a jury to render a verdict against a defendant, without regard to the sufficiency of the evidence, than proof that the person against whom such verdict is sought is amply protected by indemnity insurance.”

Needless to say, most individuals I represent don’t like this logic. For the most part, the reason my clients are mad and suing is not because someone hit them with a car, but because Allstate, State Farm or some other insurance company treated them unfairly after the accident. My clients want juries to hear about the years of delay and heartache insurance adjusters have put them through.

There are a number of States where juries are told about the existence of insurance in automobile negligence cases; although this is the exception and not the rule. What do you think about this?

Robby JessupYou Can’t Say “Insurance” In The Courtroom
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Is Adultery against the Law?

In North Carolina, a spouse may sue a third-party for interfering with his or her marital relationship. Suit is usually brought against the adulterous spouse’s lover for “Alienation of Affection.” (Although, North Carolina law also allows for such claims to be filed against an in-law, relative, counselor, therapist, or clergy member who has talked someone into leaving his or her marriage.)

“Criminal conversation” is a legal claim closely related to Alienation of Affection. It is basically a civil claim for adultery. With Criminal Conversation, it is not necessary to prove that adultery had any effect on a marriage; only that intercourse occurred between a spouse and a third-party. Adultery must be proven to win on a Criminal Conversation claim; whereas it is not required to be proven to prevail upon a claim for Alienation of Affection.

Alienation of Affection claims are not necessarily about physical infidelity, but about someone destroying the love between husband and wife, by any type of conduct.

North Carolina law recognizes marriage as one of the most sacred social institutions, and as of late, a string of large verdicts show the people of North Carolina continue to believe this to be so. Recent judgments across North Carolina in Alienation of Affection and Criminal Conversation cases range from $1.1 Million to $30 Million Dollars.

While all but seven states in the United States have abolished civil claims to enforce the sanctity of marriage, these legal claims remain alive and well in the Old North State.

If you have any questions about this article, or if you wish to have a confidential conversation, please feel free to call Robby Jessup at (252) 531-7555 or email him at [email protected]

Robby JessupIs Adultery against the Law?
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