Since 1935, in North Carolina, there has been a statutory lien upon sums of money recovered as damages for personal injury claims. “This lien is in favor of any person, corporation, State entity, municipal corporation or county to whom the person so recovering, or the person in whose behalf the recovery has been made, may be indebted for any drugs, medical supplies, ambulance services, services rendered by any physician, dentist, nurse, or hospital, or hospital attention or services rendered in connection with the injury in compensation for which the damages have been recovered. Where damages are recovered for and in behalf of minors or persons non compos mentis, the liens shall attach to the sum recovered as fully as if the person were sui juris.” . N.C.G.S § 44-49.

N.C.G.S § 44-50 provides that “lien provided for shall in no case, exclusive of attorneys’ fees, exceed fifty percent (50%) of the amount of damages recovered.” North Carolina Baptist Hospitals, Inc. v. Crowson, 155 N.C.App. 746, 573 S.E.2d 922 (N.C.App. 2003) provided that the medical providers did not have to be paid in a pro rata manner. That case held that: “The dispositive issue on appeal is whether sections 44-49 and 44-50 of the North Carolina General Statutes prohibit an attorney from disbursing funds recovered from the settlement of a personal injury lawsuit in a non-proportional manner where there are multiple medical service providers holding equally valid liens upon such settlement funds and insufficient funds to compensate all lien holders. Because we conclude that sections 44-49 and 44-50 do not require a pro rata disbursement of funds, we affirm the order of the trial court granting summary judgment in favor of defendant.”

However, in 2003, the North Carolina Legislature passed a new section which requires pro rata distribution.   N.C.G.S. § 44-50.1, entitled “Accounting of disbursements; attorney’s fees to enforce lien rights” provides that “Notwithstanding any confidentiality agreement entered into between the injured person and the payor of proceeds as settlement of compensation for injuries, upon the lienholder’s written request and the lienholder’s written agreement to be bound by any confidentiality agreements regarding the contents of the accounting, any person distributing funds to a lienholder under this Article in an amount less than the amount claimed by that lienholder shall provide to that lienholder a certification with sufficient information to demonstrate that the distribution was pro rata and consistent with this Article. If the person distributing settlement or judgment proceeds is an attorney, the accounting required by this section is not a breach of the attorney-client privilege.”  N.C.G.S. § 44-50.1.  “The certification under subsection (a) of this section shall include a statement of all of the following: (1) The total amount of the settlement. (2) The total distribution to lienholders, the amount of each lien claimed, and the percentage of each lien paid. (3) The total attorney’s fees.

These statutes are part of the laws regulating the pursuit and settlement of personal injury claims in North Carolina. If you or someone you know has been injured in an automobile accident through no fault of their own, call Collins Law Firm for a free consultation at: 910-793-9000.

North Carolina law provides that the owner of a “dangerous dog” can be strictly liable for injuries from a dog bite under N.C. Gen. Stat. §67-4.4. In order to recover damages, the plaintiff must prove that the dog that bit them was a “dangerous dog.” N.C.G.S §67-4.1(a)(1) defines ‘dangerous dog’ as:

1. A dog that:
   1. Without provocation has killed or inflicted severe injury on a person; or
   2. Is determined by the person or Board designated by the county or municipal authority responsible for animal control to be potentially dangerous because the dog has engaged in one or more of the behaviors listed in subdivision (2) of this subsection.
2. Any dog owned or harbored primarily or in part for the purpose of dog fighting, or any dog trained for dog fighting. N.C.G.S. §67-4.1(a)(1)(d) provides exceptions for the following dogs from being classified as ‘dangerous dogs’ or ‘potentially dangerous dogs’ under the statute:

(1) A dog being used by a law enforcement officer to carry out the law enforcement officer’s official duties;

(2) A dog being used in a lawful hunt;

(3) A dog where the injury or damage inflicted by the dog was sustained by a domestic animal while the dog was working as a hunting dog, herding dog, or predator control dog on the property of, or under the control of, its owner or keeper, and the damage or injury was to a species or type of domestic animal appropriate to the work of the dog; or

(4) A dog where the injury inflicted by the dog was sustained by a person who, at the time of the injury, was committing a willful trespass or other tort, was tormenting, abusing, or assaulting the dog, had tormented, abused, or assaulted the dog, or was committing or attempting to commit a crime.

N.C.G.S § 67-4.1 provides that certain dogs may be classified as “potentially dangerous dogs” by a “Board designated by the county or municipal authority responsible for animal control.” N.C.G.S § 67-4.1(a)(2) also provides that the Board or a person should consider the following factors to determine if a dog is potentially dangerous:

1. Inflicted a bite on a person that resulted in broken bones or disfiguring lacerations or required cosmetic surgery or hospitalization; or
2. Killed or inflicted severe injury upon a domestic animal when not on the owner’s real property; or
3. Approached a person when not on the owner’s property in a vicious or terrorizing manner in an apparent attitude of attack.

If a plaintiff is bitten by a “dangerous dog,” the owner of the dog may be held strictly liable for damages.

Negligence

Even if the dog is not determined to be a “dangerous dog,” one can still recover damages under the theory of negligence. To prove negligence, the plaintiff must show that the defendant was keeping an “animal with the knowledge of its viciousness.” Lee v. Rice, 154 N.C. App. 471, 472 (2002).

Under this theory, a plaintiff can recover compensation for their damages if they can prove two elements: “(1) that the animal was dangerous, vicious, mischievous, or ferocious, or one termed in law as possessing a vicious propensity; and (2) that the owner or keeper knew or should have known of the animal’s vicious propensity, character, and habits.” Lee v. Rice, 154 N.C. App. 471, 472 (2002). (quoting Sellers v. Morris, 233 N.C. 560,561 (1951).)

Negligence Per Se

Negligence per se may apply if the owner or keeper of the dog had violated a local ordinance or state law. In Swaney v. Shaw, the court found that ‘the violation of a statute which imposes a duty upon the defendant in order to promote the safety of others, including the plaintiff, is negligence per se, unless the statute, itself otherwise provides.’ 27 N.C. App. 631, 635 (1975). (quoting Ratliffe v. Power Co., 268 N.C. 605, 610 (1966).)

Many counties and cities have local laws regarding dangerous dogs. N.C.G.S. § 130A-200 provides that: “A local health director may declare an animal to be vicious and a menace to the public health when the animal has attacked a person causing bodily harm without being teased, molested, provoked, beaten, tortured or otherwise harmed. When an animal has been declared to be vicious and a menace to the public health, the local health director shall order the animal to be confined to its owner’s property. However, the animal may be permitted to leave its owner’s property when accompanied by a responsible adult and restrained on a leash.”

If you have sustained injuries after having been bitten by a dog or other dangerous animal, call Collins Law Firm for a consultation at 910-793-9000. We have represented victims of dog bites and recovered money damages for our clients, and we will be happy to talk with you about your case.

The recent snow storm in the east coast caused school closings and court closings in Southeastern North Carolina including New Hanover, Brunswick, Pender, Columbus, Bladen, Sampson, Duplin, and Onslow Counties. The criminal and traffic charges which were set for the days court was closed are continued to the next court day for the charging officer. Most people with court dates which were set for the days court was closed will be notified by the clerk’s office about their next court date. Defendant’s with lawyers should consult with their attorney about their next court date.

All defendants without attorneys should at least consult with a qualified lawyer about their case. In many cases, the cost of having an attorney represent someone with a criminal or traffic charge is much less than the consequences and costs associated with being convicted. In traffic cases, convictions can cause thousands of dollars in increased insurance premiums, compared with a few hundred dollars for attorney fees. Also, in most traffic violation cases, defendants do not even have to appear in court. For criminal charges, a conviction can affect the defendant for the rest of their lives, and may cost them many opportunities such as jobs and housing options.

If you have a pending criminal or traffic charge, call the professionals at Collins Law Firm for a consultation at: 910-793-9000. We have been representing people with criminal and traffic charges in Southeastern North Carolina since 1997.

Anyone can be charged with a crime, and many people are wrongfully accused. Just because someone has been charged does not mean they are guilty. Criminal charges, even wrongful criminal charges, result in criminal records which can affect people for their entire life. Therefore, it is very important that people who are charged take the matter seriously and take appropriate steps to avoid or mitigate the negative consequences of criminal charges. In some cases, it is possible to have criminal records expunged which means the official public records are removed and destroyed by a process called expungement or expunction.

In North Carolina, if a person is convicted of a crime which occurred after they were 18 years of age or older, the conviction cannot be expunged. However, in some cases, it may be possible to reopen a case through a motion for appropriate relief, and thereafter have the charge dismissed. If successful, it may then be expunged. Convictions for misdemeanors which occurred before the defendant was 18 years old may be expunged when certain conditions are met.

Criminal charges for which the defendant was not convicted, i.e. the charges were dismissed or the defendant was found not guilty, may be expunged. However, a defendant may only receive an expungement for a set of charges which all occurred within a 12 month period or which were all disposed in the same term of court. A defendant may only receive one expungement in North Carolina, with a few exceptions.

Criminal charges based on another person using their identity (i.e. identity theft), which are dismissed may be expunged, and there appears to be no limit on the number of charges which can be expunged under this provision. In addition, charges for which one has received a pardon of innocence may be expunged, and there appears to be no limit on the number of charges which can be expunged under this provision. There are also statutes which provide for expungement of some drug charges which are dismissed pursuant to statutory deferred prosecution provisions.

If you have been charged with a crime and want to discuss the possibility of an expungement or expunction, call Collins Law Firm at 910-793-9000.

The holidays are upon us and most people are attending holiday parties and other holiday events.  Many of these events offer alcohol and law enforcement is aware of that fact.    Enforcement of traffic laws are often increased during holidays and this season is no exception.   Last week alone, for example, there were over 70 people charged with driving while impaired (DWI/DUI) in New Hanover County, NC.  Here is an article in the Wilmington Star News about the stepped up enforcement in New Hanover and Brunswick Counties.

It is not illegal in North Carolina to drive after drinking alcohol, however it is illegal to drive with a blood alcohol level of 0.08 or
higher, or while appreciably impaired due to any impairing substance including alcohol.   Most people are not able to easily determine whether or not their blood alcohol level is above 0.08.

We encourage everyone to use a designated driver, and no one should drive drunk.  While we are certainly not advocates of drinking and driving, if you are charged with driving while impaired, Collins Law Firm can help.  We have been representing people charged with criminal and traffic charges for over a decade in Pender, New Hanover, and Brunswick Counties.

If you are charged with DWI and registered a 0.08 or higher, your NC driving privilege will be revoked for 30 days immediately pursuant to N.C.G.S. § 20-16.5.  However, the statute provides the right for a hearing to contest the revocation if the proper request is filed within ten (10) days from the date of offense.   Defendants charged with DWI/DUI are notified of this right by the Magistrate in writing in the revocation order.   Collins Law Firm is often able to successfully challenge these revocations, and in those cases we are able to have our client’s driving privileges restored immediately without additional costs.   If not successful in the civil revocation hearing, or if the ten days has elapsed, we can usually obtain a pretrial limited driving privilege for the last 20 days of the initial 30 day revocation.  However, obtaining this privilege does require additional costs, and the driving privileges are limited.

Although most people charged with DWI are convicted, in many cases we have been able to avoid convictions altogether for our clients.   When we are not able to avoid a conviction, we can certainly help people understand the consequences of being charged and convicted with DWI/DUI, help our clients receive the minimum punishment upon conviction, and reduce the inconvenience and uncertainties involved with being charged.

If you or someone you know has been charged with impaired driving, or with any criminal or traffic violation, call us for a consultation at 910-793-9000.

North Carolina’s New Motor Vehicles Warranties Act (§§ 20-351 – 20-353), also known as North Carolina’s Lemon Law (and federal Lemon Laws such as the Magnuson-Moss Warranty Act) provide for compensation for purchasers of defective vehicles. To qualify for relief under North Carolina’s Lemon Law, you must have purchased a new vehicle that has had multiple repair attempts under the manufacturer’s factory warranty, and it must be “seriously defective” and cannot be repaired in a “reasonable number of attempts.”

The Act defines serious defect as “any defect or condition or series of defects or conditions which substantially impair the value of the motor vehicle to the consumer.” The defect must be one that is covered by the manufacturer’s warranty and it must have appeared during the warranty period. In order to qualify for a replacement or refund, the defect must have occurred within that first 24 months or 24,000 miles.

To repair a single serious defect, the Act states that “a reasonable number of attempts” has been exhausted when the vehicle has been presented to the manufacturer, or its authorized dealer, for repair four (4) or more times without success. The Act states that “a reasonable number of attempts” to repair a series of defects is exhausted when the vehicle has been out of service while waiting for repair for a number of defects for a cumulative total of twenty (20) or more business days during any 12 month period of the warranty, so long as certain notice provisions have been met.

Once the proper notice requirements are met, and the manufacturer has failed to correct the defect(s), the Act provides that the purchaser is entitled to a prorated refund based on a deduction for a reasonable allowance for the consumer’s use of the vehicle, or replacement with a comparable vehicle, which would be the same make and model as the defective vehicle.

Collins Law Firm has successfully represented clients seeking compensation under North Carolina’s Lemon Law. If you believe you qualify for compensation, and wish to have a consultation, call us at 910-793-9000.

Traffic tickets can be a lot more expensive than the fine and court costs stated on the ticket. For most traffic tickets, if you just pay off the ticket, you will be convicted of the charge, and you will be assessed points both on your driver’s license and on your insurance policy. Insurance points can be very expensive. They cause your insurance premiums to increase for three years, and for most policies, that will add up to thousands of dollars. Details about insurance points and the percentage of premium increases can be found here. In addition to insurance points, convictions for many charges, and convictions for multiple charges will result in the revocation of your driver’s license. The loss of one’s driving privilege entails more costs for most people.  Here are some examples of revocations for convictions.

In this great recession, many people are being short sighted and think they are saving money by not hiring an experienced attorney to represent them with their traffic charges. The result is that the ticket costs them much more than they would have paid an attorney to handle it for them.

Collins Law Firm has handled thousands of traffic tickets for our clients over the past ten plus years, and in most cases we have been able to avoid insurance points altogether. Furthermore, for most simple tickets (stop sign violations, speeding violations, etc.), our clients do not even need to go to court. We offer free phone consultations for most traffic matters. If you need advice or information about representation for a traffic violation, call us at: 910-793-9000.

Employees who are laid off, or terminated through no fault of their own may qualify for unemployment compensation. Unemployment benefits are administered by the Employment Security Commission (ESC). To receive unemployment benefits, a former employee must file a claim with the ESC, and meet eligibility requirements. To be eligible for benefits, you must be unemployed through no fault of your own, be able and available for work and be actively seeking work. You may be disqualified from receiving benefits if you were discharged from work due to work “misconduct,” such as use of alcohol or drugs, fighting, unauthorized absences without good cause or theft of company property. You may also be disqualified if you are terminated for a reason that does not constitute misconduct, but is considered a ”substantial fault.” Substantial fault includes acts, over which you have reasonable control, that violate reasonable job requirements.

You must go to your local ESC office to file a claim. To find out the location of your local office, look for the county office of the ESC in your phone book or go online to www.ncesc.com. After you file your claim, your employer will have an opportunity to respond to the claim, including explaining the reason for your discharge. If your employer contests the claim or if your claim raises eligibility issues, the claim will be reviewed by an adjudicator who will make a determination as to whether you have a valid claim. An appeal can be made from the adjudicator’s decision.

Many employers will contest a filing for benefits because if the claim is awarded, the unemployment insurance costs to the employer may increase.

Collins Law Firm has successfully represented employees seeking unemployment, at the initial stages, and through the appeals process. If you need assistance pursuing unemployment compensation, call us at 910-793-9000 to schedule a consultation.

Historically, in relationships between landlords and tenants, landlords have all the power. However, the North Carolina Residential Rental Agreements Act provides specific rights for tenants and duties for landlords. One duty of the landlord is to keep the rental premises in a fit and habitable condition. If the landlord fails to do so, the tenant can sue for mitigation, or to enforce the rights provided by the statutes. However, before doing so, the tenant must put the landlord on notice in writing of the breach for most types of necessary repairs.

Security deposits are also controlled by statues. Landlords are required to keep security deposits in a escrow account with a bank and provide written notice of where the funds are being held within 30 days of occupancy of rental property (or obtain a bond). Further, upon termination of the lease, the landlord must refund the security deposit or provide a written accounting of how it was applied within 30 days of the termination of the lease. A willful failure to do so can result in the tenant getting the full security deposit back plus attorney fees. Landlords may not deduct damages for normal wear and tear from the security deposit, but what constitutes normal wear and tear would ultimately be up to the courts, if an agreement cannot be reached between the landlord and tenant.

Collins Law Firm has represented both landlords and tenants in disputes about security deposits and other matters related to leases. If you are having a dispute regarding a lease, please call our office to schedule a consultation at 910-793-9000.

A possible disposition for a criminal or traffic charge (either an infraction, misdemeanor, or a felony) unique to North Carolina state courts, is a Prayer for Judgment Continued, or PJC.  When requesting a court to grant a request for a PJC, the proper way attorneys ask is to request that the “judgment be continued,” or to request that the court “continue judgment.”  While a PJC is an excellent result in many cases, it may not be the best result for all criminal or traffic cases.

Our experience has been that the effect of a PJC is highly misunderstood by most people, including lawyers or other legal professionals not experienced in traffic or criminal law.

The effect of a PJC for traffic violations is controlled by statutes and varies with the context in which it is considered.  A PJC may or may not avoid points, and the rules are different with respect to driver’s license points (or DMV points) or insurance points.   We have posted an article explaining more details about what a PJC is and how it may affect one’s record on our site, and a brief summary of how a PJC may affect insurance and DMV points for traffic violations.

Any time you are considering requesting a PJC, you should always consult with an experienced criminal or traffic lawyer.  If you have a pending court date for a criminal matter or traffic violation, call Attorney David Collins at Collins Law Firm for a consultation at 910-793-9000.

At Collins Law Firm, we have been practicing criminal and traffic law in Southeastern North Carolina for over a decade and David Collins has been licensed to practice law in both North Carolina and South Carolina since 1993.  The counties we cover for criminal and traffic matters include (County/Seat of Court): Brunswick County/Bolivia, NC; New Hanover County/Wilmington, NC; Pender County/Burgaw, NC; Columbus County/Whiteville, NC; Bladen County/Elizabethtown, NC; Sampson County/Clinton, NC; Duplin County/Kenansville, NC; and Onslow County/Jacksonville, NC.