Category: Personal Injury

Tort Law – Procedural Law

Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. This article discusses the civil procedure for enforcing tort law.

Filing a Lawsuit

The general method provided by civil procedure to enforce the rights and duties provided by tort law is for persons and organizations who believe that any of their rights have been violated to “sue” the persons and organizations whom they allege have failed to do their duty as provided by tort law. To “sue” refers to the initial act required to formally enforce the law, which is to file with a court a group of documents that notify the court and the alleged violators of the alleged violation or violations of tort law. The group of documents is known as a suit, and so the whole process is known as a lawsuit. The lawsuit asks the court to declare that the filers have been harmed under tort law and that they are entitled to satisfaction — usually money — from the persons or organizations against whom the group of documents were filed. The court declaration is important because anyone who fails to obey the court’s declaration ordering satisfaction is potentially subject to punishment by the court for their failure to obey the court’s declaration.

The Threat of a Lawsuit

Sometimes it is not actually necessary to file a lawsuit to enforce tort law. Sometimes the threat of the successful use of civil procedure encourages and prompts persons and organizations who have failed to obey tort law to settle the substantive law matter out of court.

Words Used in a Lawsuit

A person or organization who has had one or more of its rights under tort law violated may be known as a victim. The victim is said to have suffered a wrong. The person or organization who has failed to obey one or more of its duties under tort law may be known as a perpetrator, tortfeasor, violator, or wrongdoer.

As a general rule, a person or organization that files a lawsuit is known as a plaintiff. As a general rule, a person or organization that responds to a lawsuit is known as a defendant. A victim or alleged victim is usually known as a plaintiff or potential plaintiff. A perpetrator, tortfeasor, violator, or wrongdoer, or an alleged perpetrator, tortfeasor, violator, or wrongdoer, is usually known as a defendant or potential defendant.

It is also possible for a person or organization that is sued, a defendant, to counter-sue the plaintiff or plaintiffs. For the sake of clarity, the parties to a lawsuit retain their initial designations as plaintiff or defendant, even though the result of the lawsuit may be a finding that the real victim, if any, is a defendant on the defendant’s counter-suit and not a plaintiff on the plaintiff’s initial suit.

The Military Claims Act

When a person has died, has sustained injuries, or has sustained property damage as a result of the activities of military personnel or civilians who are employed by the military, the person or his or her representative may be entitled to recover damages from the federal government under the Military Claims Act (MCA). The MCA covers claims for damages that are caused by military personnel or civilians who are acting within the scope of their employment or that are caused by military activities.

The MCA covers claims for damages that are not covered by the Federal Tort Claims Act (FTCA). Unlike the FTCA, the MCA pays for damages that occur worldwide. Also, unlike the FTCA, the MCA only pays damages for circumstances that are specifically included in a military department’s regulations.

The MCA is limited to claims that arise from military personnel or civilians who are acting within the scope of their employment or that are incident to military activities that are noncombatant. Examples of claims regarding noncombatant military activities include claims that result from maneuvers, from bombing exercises, or from aircraft operations. For such type of claims, a person does not need to show that the activities were conducted in a belligerent manner. The person also does not need to show that his or her losses were the result of the conduct of a specific employee.

Certain types of activities are specifically excluded from coverage under the MCA. Those activities include combat activities, enemy actions, certain postal activities, or property damage claims that are based on contract violations. If a claim can be pursued under another federal claims statute, the claim will be exempt under the MCA. Such claims include claims under the FTCA, the Military Personnel and Civilian Employees’ Claims Act, the Foreign Claims Act, and certain admiralty claims.

Certain types of claimants are specifically excluded from coverage under the MCA. Military personnel and civilian employees are not entitled to file an action under the MCA for personal injury or death if the personal injury or death occurred as a result of that person’s military service or employment. Military personnel and civilian employees may be entitled to file claims under the MCA for property damage as long as their claims are not covered by another statute, such as the Military Personnel and Civilian Employees’ Claims Act.

Military personnel and civilian employees are prohibited from filing a claim under the MCA if their claim arose as a result of that person’s own negligence or wrongful acts. If the claim arose in a contributory negligence state, the claim is barred under the MCA. If the claim arose in a comparative negligence state, the claim may not be totally barred. However, the person’s damages will be reduced in accordance with his or her proportionate share of negligence.

Damages for personal injury or death under the MCA include damages for pain and suffering, permanent disability, medical expenses, lost wages, and a loss of earning capacity. Property damages are based on the cost of repairing the property. If the property cannot be repaired, damages are based on the replacement cost of the property less the salvage value of the property.

Under the MCA, a claimant is not entitled to recover attorney’s fees, interest, the cost of preparing his or her claim, or damages for the claimant’s inconvenience.

A claim under the MCA must be filed within two years after a cause of action accrues. However, the two-year statute of limitations may be tolled or suspended during periods of armed conflict.

Personal Injury Actions Between Spouses

When spouses commit torts against each other, a cause of action may or may not be available to the injured spouse. It depends upon the jurisdiction and the type of injury.

Inter-spousal Immunity

Historically, spouses could not bring actions against each other to recover damages for personal injuries while they were married because of the doctrine of interspousal immunity. The denial of a cause of action was based on the principles of preserving marital harmony, avoiding fraud or collusion if the tort was covered by insurance, and preventing the spouse who was liable for the tort from benefiting from a judgment in favor of his injured spouse. Interspousal immunity still survives intact in some jurisdictions, although some jurisdictions have the following exceptions.

Pre-marital Torts

In some jurisdictions that apply interspousal immunity, a spouse who is injured prior to marriage may bring an action against the other spouse during the marriage. However, other immunity jurisdictions hold that the marriage extinguishes the right to bring an action for a premarital tort.

Action After Spouse Dies

Some immunity jurisdictions permit an injured spouse to sue a deceased spouse’s estate for a tort that was committed by the deceased spouse during the marriage because the principles of preserving marital harmony and preventing collusion between spouses do not apply after one spouse’s death. Other immunity jurisdictions, however, do not recognize this exception.

Action After Divorce

As is the case when a spouse dies, the principles supporting interspousal immunity do not apply after a married couple divorces. Thus, some immunity jurisdictions allow an injured spouse to sue a former spouse for a tort that was committed during the marriage. Other jurisdictions strictly adhere to the interspousal immunity rule if the tort occurred during the marriage.

Willful, Wanton or Intentional Torts

Some immunity jurisdictions permit interspousal actions if the tort was intentional rather than negligent because it would be the conduct causing the tort that disrupts the marital harmony rather than the filing of a subsequent lawsuit. Spouses who commit such acts against each other are also unlikely to be in collusion with one another.

Motor Vehicle Torts

Some courts that uphold interspousal immunity allow an exception for actions between spouses arising from motor vehicle accidents because the real defendant is usually an insurer.

Cause of Action Permitted

Most jurisdictions have abrogated the doctrine of interspousal immunity and allow spouses to sue each other. The abrogation is based on the inadequacy of divorce or criminal law as alternatives to a lawsuit, the court’s ability to detect collusion between spouses, and the belief that a wronged party should be able to recover for his injuries.

Aviation Litigation

Aviation litigation may involve commercial or private airline accidents. When a flight crosses state lines or when an aircraft contains passengers from several different states, an accident will often result in large multi-party lawsuits and litigation in several states or in several federal district courts. When several states are involved, it must be determined whether the state courts or the federal courts are entitled to exercise subject-matter jurisdiction over the accident and which state’s laws will apply to the accident.

Although an accident that occurs within a state will generally entitle a court within the state to have subject-matter jurisdiction over the accident, the court must also have personal jurisdiction over the parties who are involved in the litigation. Each defendant must have sufficient minimum contacts with the state in order to be sued in the state court. Therefore, aviation litigation is often brought in federal courts based on the diversity of citizenship of the parties.

Although the general law of torts applies to airline accidents, federal law may be applied because the federal government is responsible for regulating aviation safety standards. Such federal laws include the Federal Aviation Act and the Federal Tort Claims Act. The Death on the High Seas Act or the Jones Act may apply if the accident occurred at sea or in navigable waters. The Foreign Sovereign Immunity Act, the Warsaw Convention, or the Hague Convention may apply if the accident involved a foreign airline or foreign passengers.

The Federal Aviation Administration (FAA) is the agency of the federal government that is responsible for prescribing minimum safety standards for the design and construction of aircraft and their components. The FAA is involved in the inspection of aircraft. The FAA is responsible for certifying pilots, crew members, and mechanics. The FAA promulgates air traffic rules and regulations regarding the flight of aircraft and the protection of persons and property on the ground. The FAA also licenses air traffic controllers.

State law may be considered to be inapplicable to an airline accident because of the Federal Airline Deregulation Act of 1978 (ADA). The ADA prohibits a state from enforcing its laws or regulations with regard to the price, route, or service of an air carrier. Although the ADA will generally preclude claims against air carriers under state consumer protection laws, the ADA does not preclude state negligence actions against air carriers for personal injuries.

Because airline accidents often result in serious personal injury and death, a state’s wrongful death and survival laws may apply to an accident. A wrongful death action may be brought by a decedent’s surviving spouse, children, or parents. A survival action may be brought by a decedent’s heirs, legal representatives, or estate. Damages in a wrongful death action may include monetary losses, mental anguish, and loss of companionship. Damages in a survival action may include medical and hospital expenses, funeral expenses, and the pain and suffering of the decedent.

A state’s tort and negligence laws may also apply to an airline accident. Negligence principles are based on a breach of a duty, which breach was the proximate cause of an accident. The airline, the pilot, or the people who are responsible for maintaining and repairing the aircraft may be sued for negligence. If aircraft malfunction was the cause of the accident, the manufacturer of the aircraft may also be sued for negligence. Airport owners and air traffic controllers may further be sued for negligence.

Attorney Liability for Another Attorney’s Malpractice

An attorney may be held liable for committing legal malpractice while representing a client. Legal malpractice occurs when an attorney fails to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity possess and exercise. In addition, other parties may be held liable for that attorney’s misbehavior.

Liability of a Partnership

Under the Uniform Partnership Act, a partnership is liable for loss caused by a partner who acts in the ordinary course of the partnership’s business or with the authority of the copartners. Thus, copartners of an attorney who commits malpractice while handling a client’s funds may be liable for that attorney’s malpractice. However, if the attorney acts for his own benefit and interest in a matter that is beyond the scope of employment, the partnership will not be liable for the attorney’s conduct. For example, a partnership may not be liable for an attorney’s intentional and malicious torts.

Liability of Associates

In some cases, especially complex ones, an attorney may hire other attorneys to assist him in rendering legal services. If the initial attorney commits legal malpractice, the client may recover against him in addition to the attorneys who are associated with the case. Liability may be based on the associates coming together with the initial attorney to form a type of joint venture.

Local counsel retained by an out-of-state lead attorney to assist with litigation may be held liable for malpractice the lead attorney commits against a client. However, local counsel’s duty to the client is usually limited to exercising reasonable care in the work assigned by the lead attorney and does not extend to reviewing all matters handled by the lead attorney.

Personal Injury Protection Under No-Fault Automobile Coverage

Personal injury protection (“PIP”), also known as ”no-fault benefits” or first-party benefits, coverage is an extension of automobile insurance coverage. It pays, up to a certain amount, an insured’s health care expenses and other damages, like lost wages and income continuation benefits, due to an automobile accident regardless of who was at fault. Several no-fault automobile insurance states require drivers to carry PIP coverage. In some states, insurance companies are required to offer PIP coverage. Insureds can then purchase it, if they choose.

The theory behind personal injury protection coverage is to reduce the number of negligence accident cases involving minor injuries that are filed in the courts. By statute, an insured’s right to sue a person, who harmed the insured, is restricted to serious injury cases. Insureds without serious injuries are entitled to significant benefits under PIP that are designed to minimize the economic impact of the automobile accident and injury.

Personal injury protection coverage directly pays an insured’s bills for treatment of automobile accident-related injuries. It will pay the costs for doctors and other medical providers, hospitals, trauma centers, and necessary medical equipment. While PIP coverage provides valuable benefits, it has not always performed well. The goal of removing minor lawsuits from the courts has not been met because no-fault insureds can still sue if their claims are denied. Further, a high incident of fraudulent claims has been noted.

Personal injury protection coverage is only required by a limited number of states. The following states require PIP coverage: Colorado, Delaware, Florida, Hawaii, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Oregon, and Utah.