Latest Posts

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?
read more

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
read more

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
read more

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?
read more

Joan Davis Named 2018 Top Attorney in Super Lawyers Magazine

Partner Joan Davis has been named as a Top Attorney in 2018 Super Lawyers Magazine.  Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations and peer evaluations.  Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries. Super Lawyers is also published as a special section in leading city and regional magazines across the country. Lawyers are selected to a Super Lawyers list in all 50 states and Washington, D.C.  For more information, you can visit http://www.SuperLawyers.com.  Congratulations Joan!

Robby JessupJoan Davis Named 2018 Top Attorney in Super Lawyers Magazine
read more

Robby Jessup & Joan Davis Inducted As Lifetime Members of Million Dollar Advocates Forum

PRESS RELEASE FROM THE MILLION DOLLAR ADVOCATES FORUM:

The Million Dollar Advocates Forum is pleased to announce that attorneys Robert H. Jessup and B. Joan Davis of Raleigh, N.C. have been inducted as lifetime members.The Million Dollar Advocates Forum is recognized as one of the most prestigious groups of trial lawyers in the United States. Membership is limited to attorneys who have won million and multi-million dollar verdicts, awards and settlements. The organization was founded in 1993 and there are approximately 3000 members located throughout the country. Fewer than 1% of U.S. lawyers are members. Forum membership acknowledges excellence in advocacy, and provides members with a national network of experienced colleagues for professional referral and information exchange in major cases. Members must have acted as principal counsel in at least one case in which their client has received a verdict, award or settlement in the amount of one million dollars or more.

Robby JessupRobby Jessup & Joan Davis Inducted As Lifetime Members of Million Dollar Advocates Forum
read more

One Million Dollar Recovery Reported By NCAJ’s Trial Briefs Magazine (Wrongful Death Case)

The truck driver’s story just didn’t add up, and when our attorneys, Robby Jessup and Joan Davis, began to investigate and ask questions, the whole thing unraveled.  NCAJ’s Trial Briefs Magazine reported as follows on their work:

ROBBY JESSUP and JOAN DAVIS of the law firm RDU Injury Law in Raleigh, in association with RUSSELL JOHNSON of the law firm Diener Law in Greenville, obtained a One Million Dollar Settlement in a disputed liability wrongful death case. These attorneys represented the estate of a Mexican immigrant who was killed in a head-on collision with a transfer truck. The truck driver and trucking company initiated the lawsuit by asserting claims against the estate for personal injury and property damage. The estate proceeded to counter­claim for wrongful death.The State Troopers and initial experts who investigated the crash all said that the Mexican immigrant was at fault for causing the wreck and had crossed the center line. In fact, in the incident report, the investigating officer indicated that he suspected alcohol was a factor in the wreck. The family of the decedent reported that he had just left for work, approximately fifteen minutes before the wreck and was sober. The autopsy confirmed that the decedent was not under the influence of alcohol.

After investigating the claims, an eyewitness to the crash was discovered who had called 911 (but had not spoken to law enforcement at the scene). This eyewitness reported that it was the truck driver who crossed the center line and caused the wreck, not the Mexican immigrant.

In discovery, it was found that the truck driver had a revoked driver’s license at the time of the wreck, and had a driving history that disqualified him from employment as a commercial driver. Surveillance videos of the truck driver (taken by the trucking company’s workers comp carrier) also came to light that cast serious doubt on his claimed injuries.

Policy limits for the trucking company of $1,000,000 were paid at mediation with Bill King in April of 2017.

Robby JessupOne Million Dollar Recovery Reported By NCAJ’s Trial Briefs Magazine (Wrongful Death Case)
read more

Top 40 Under 40

We are excited to announce that The National Trial Lawyers have selected our very own Robert H. Jessup as one of the Top 40 Under 40 Civil Plaintiff Lawyers!

The National Trial Lawyers: Top 40 under 40 is a professional organization composed of the top trial lawyers from each state or region who are under the age of 40.  Membership into The National Trial Lawyers: Top 40 under 40 is by invitation only and is extended exclusively to those trial lawyers practicing civil plaintiff and/or criminal defense law.  Membership is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile measured by objective and uniformly applied standards in compliance with state bar and national Rule 4-7. Invitees must exemplify superior qualifications, trial results, and leadership as a young lawyer under the age of 40. Selection is based on a thorough multi-phase objective process which includes peer nominations combined with third-party research.”  Read More

Congratulations Robby!

Robby JessupTop 40 Under 40
read more