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Filing a Personal Injury Lawsuit—Part Two

Post-Discovery Motions | Preparation for Trial

Filing a Personal Injury Lawsuit—Part TwoYou’ve filed your complaint and the defendant has submitted an answer in a timely manner. You’ve also conducted all necessary depositions, and completed all other discovery. You’re ready to go to trial, right? Not quite yet…the court dockets are always extremely full, so judges have a vested interest in streamlining the trial process, or avoiding trial, if at all possible. That’s typically done though pre-trial motions, which come in two varieties—dispositive motions and evidentiary motions.

Dispositive Motions

A dispositive motion is one that seeks to either throw out certain claims or dismiss the lawsuit altogether. Such a motion can be filed by either party. An injured party may ask the court for summary judgment, arguing that the discovery has produced no evidence that could support any type of meaningful defense. Conversely, the defendant may ask the court to dismiss some or all of the lawsuit, contending that the plaintiff has not provided sufficient evidence to prove all the required elements of the claim.

Evidentiary Motions

In the American civil justice system, the concept of “open discovery” prevails. That means that both parties are entitled to access to all relevant information and evidence. It also means that, during the discovery process, evidence may be gathered that may not be admissible at trial. It may be based on hearsay, may be argumentative or may be an opinion not based on fact. The court will typically allow parties to gather that type of evidence outside of the hearing of the jury, but cannot allow such evidence at trial, as it may unfairly bias the jury. Rather than have the discussions at trial, where the jury may hear something they shouldn’t, the court will usually hear arguments and make rulings about certain types of evidence before the trial starts.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

Filing a Lawsuit for a Personal Injury—Part One

Initiating the Legal Process in Court | Gathering Evidence

Filing a Lawsuit for a Personal Injury—Part OneWhen you’ve been hurt because of the carelessness or negligence of another person, you hope that you can get the compensation you need to cover your losses without the need to file legal action. Unfortunately, that doesn’t happen very often. In most instances, you’ll need to hire an experienced personal injury lawyer and methodically move through the legal process. In this series, we provide an overview of what you can expect when you file a civil lawsuit for damages suffered in an accident.

Step One—Filing Your Claim

To initiate a lawsuit, you must file a document known as a “complaint.” The complaint must be filed in the appropriate jurisdiction—both geographically and in terms of the types of matters heard by the court. As a general rule, most personal injury claims are filed in state court, but there are circumstances where a federal court will have jurisdiction. Typically, the injured party initially establishes jurisdiction by filing with a specific court, though the defendant may seek a change of venue, or to have the lawsuit dismissed for lack of jurisdiction.

In addition to filing in the appropriate court, you must also file in a timely manner. The statute of limitations sets forth the maximum amount of time you have to file, typically two years from the date of injury or discovery of injury. Once your complaint is filed, the defendant must file an answer within a specified period, usually 28 days. If the defendant fails to do so, you can ask the court for a default judgment.

Step Two—The Discovery Process

If there’s a timely response to your complaint, the judge will customarily set up an initial conference. That meeting usually has three functions:

  • It allows the judge to learn about the case
  • It gives the judge the opportunity to determine whether settlement is likely (and to encourage that process)
  • It allows the judge to set a discovery schedule

Discovery is a legal term that refers to the gathering of evidence. The judge will set a calendar for the completion of discovery and set any necessary limits on discovery. As a general rule, discovery is obtained through

  • Depositions
  • Requests for production of documents or other physical evidence
  • Interrogatories (written questions submitted to the other party)

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

Who Can File a Wrongful Death Claim in New Jersey?

Determining Eligibility for Accidental Death Damages

Who Can File a Wrongful Death Claim In New Jersey, when someone dies as a result of the carelessness or negligence of another person, there may be surviving individuals who have a right to bring a lawsuit for financial or other losses suffered. But how do you determine whether you qualify to pursue compensation after the death of a loved one? Can anyone who feels loss because of the death of another person seek compensation for that loss?

In New Jersey, as in other states, the answer to that last question posed above is “no.” In order to have the right to file a lawsuit to recover monetary compensation after the accidental or wrongful death of another person, you must be considered a “real party in interest.” A wrongful death action in New Jersey is customarily filed by a representative of all persons who suffered loss because of the death. That person is most often the executor or administrator of the decedent’s will, but may be anyone who meets the statutory definition of a real party interest.

Under the New Jersey wrongful death statute, the following persons have standing as real parties in interest in a wrongful death lawsuit:

  • A surviving spouse
  • A child or grandchild of the decedent
  • A surviving parent of the decedent
  • Surviving siblings, nephews and nieces
  • Anyone who can prove in court that he or she was "actually dependent" on the decedent for support

Even though the lawsuit is typically filed on behalf of all qualified beneficiaries, there is a hierarchy of recovery for a wrongful death. If the spouse or any children survive, they will be entitled to all damages. A parent may only pursue compensation if no spouse or children survive the deceased. Siblings, nieces and nephews will only succeed with a claim if there is no spouse, children or parents alive at the time of death.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

What Can I Expect to Recover in a Wrongful Death Action?

The Damages Available in an Accidental Death Claim

Tipped over truck

In New Jersey, when your loved one has died because of the wrongful, careless or negligent acts of another person, and you can demonstrate that you qualify as a “real party in interest,” you have the right to bring legal action to compensate you for your losses. Of course, if your claim is based on allegations of negligence, you’ll need to show that the defendant failed to meet the standard of care, causing your loved one’s death.

If you can prove these elements, though, you have a right to pursue monetary compensation for:

  • The loss of all financial support you would have received from the deceased, based on his or her expected income. As a general rule, the amount of lost wages will be calculated based on the decedent working until retirement. A spouse will be entitled to all lost wages, whereas a child will be able to recover lost support until he or she would reasonably be expected to be self-sufficient.
  • An medical expenses incurred by the deceased as a result of the fatal accident
  • The costs of burial and funeral services
  • The loss of the companionship or consortium that the decedent would have provided, including comfort, care and guidance
  • The value of all services the deceased would have provided, such as childcare, housekeeping, cooking, laundry, home maintenance and yard/garden

New Jersey law does not permit a survivor or family member to seek any type of damages for emotional distress or injury in a wrongful death claim. A survivor, may, however, file a separate lawsuit for intentional or negligent infliction of emotional distress.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

Determining Liability for Nursing Home Neglect and Abuse

Establishing Legal Responsibility for Wrongful Care in a Nursing Home

Liability for Nursing Home NeglectAccording to national studies, up to five million senior citizens may be victims of abuse or neglect in the United States every year. Some estimates suggest that as many as one of every 10 persons over the age of 60 has been subjected to physical abuse or neglect. When you consider that experts believe that less than one in every 10 incidents of such abuse or neglect are even reported, the scope of the problem comes into focus.

When your loved one has suffered needlessly because of inappropriate behavior or care in a nursing home or other care facility, you can bring legal action to recover damages for their losses. One of the challenges, though, is determining exactly who is potentially liable for the abuse or neglect. Though you may be able to identify an employee who has engaged in wrongful conduct, that person may not have any financial resources, so you may not be able to meaningfully pursue monetary damages. However, the facility typically carries liability insurance, so it’s customarily to your benefit to identify ways that the owners or operators of the nursing home participated in the wrongful conduct.

A nursing home facility may have liability if the actions that caused injury were the result of:

  • Inadequate or inappropriate staffing—That may involve understaffing or staffing certain positions with unqualified or unskilled workers
  • Negligence in hiring—Failure to ascertain whether potential employees had the experience, skill or training to properly perform their duties
  • Negligence in training or supervision—Failure to ensure that workers had the requisite skills and knowledge to ensure the safety of residents
  • Violation of laws or regulations governing the nursing home business
  • Medication errors—The facility may have liability if proper protocols were not in place to ensure proper administration of drugs

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

Federal Motor Carrier Safety Administration Say Log Violations are “Epidemic”

Federal Agency Says Incidents of False Logs on the Rise

Motor Carrier SafetyThe Federal Motor Carrier Safety Administration (FMCSA), the agency tasked with monitoring and regulating commercial trucking operations, has reported that the number of citations for maintaining false driver logs has gone up by as much as 20% over the last five years. Data collected in 2017 showed that more than 30,000 drivers were issued “out of service” orders that year for falsifying driving logs.

Under federal trucking regulations, drivers are limited in the amount of time they can spend on the road. For drivers hauling only goods, there’s a limit of 11 consecutive hours on the road after a minimum of 10 consecutive hours off duty. If a driver is carrying passengers, the limit is 10 hours after 8 hours off duty. Drivers may not be behind the wheel more than 60 hours over seven days, or more than 70 hours over eight days. Drivers with cargo must take at least 30 minutes off every eight hours. Drivers hauling cargo who have a sleeper berth in their truck must have at least eight hours in the berth plus another two hours off duty (or in the sleeper berth). Drivers carrying passengers who use a sleeper berth must spend at least eight hours in the berth, but may divide the time in two sections, provided each is at least two hours.

The data gathered was compiled before the FMCSA mandated electronic logging devices (ELDs) for more than 3 million commercial truck drivers. The ELDs are electronic devices installed in trucks that allow for electronic tracking of hours on the road. The FMCSA doesn’t yet have data to accurately assess the effectiveness of the ELDs, but anticipates that hours of service violations will be dramatically reduced.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

Happy 4th of July 2019

Happy 4th of July 2019

New Jersey Supreme Court Issues Ruling in PIP Claim

Court Rules That Personal Injury Protection Is Only Recourse for Claims under $250,000

PIP ClaimIn March, 2019, the New Jersey Supreme Court handed down its decision in two consolidated cases (Haines and Little), overturning a lower court ruling addressing the rights of injured parties to seek compensation from at-fault parties after a motor vehicle accident. Here’s an overview of the court’s ruling and how it affects drivers in New Jersey.

Under New Jersey’s personal injury protection (PIP) laws, which have a default amount of $250,000 (among the highest in the nation), any expenses resulting from a motor vehicle accident that are “medically necessary” and proven to be caused by an accident are paid, regardless of fault. In exchange, any such expenses paid are not admissible and cannot be recovered in a personal injury lawsuit.

However, the state of New Jersey modified the law to allow residents to choose lower PIP coverage and thereby pay smaller premiums. A person may choose PIP coverage as low as $15,000. After the changes in the law, individuals who obtained the $15,000 coverage, but suffered damages in excess of that amount, would seek to introduce evidence of those losses at a personal injury trial.

In one of the first rulings, a Bergen County court held that evidence of medical expenses in a motor vehicle accident lawsuit are admissible only to the extent they exceed the $250,000 ceiling set forth in the law. In other words, by opting for lower PIP coverage, policyholders have waived the right to recover any damages between the policy amount and the statutory PIP amount of $250,000. Another court, in Union County, came to the opposite conclusion.

In 2017, a New Jersey appellate court cleared up the differing opinions, agreeing that injured parties could directly sue an at-fault party for damages between the amount of their PIP coverage and the statutory amount. The March decision by the New Jersey Supreme Court overturns that decision. The court reasoned that the legislative intent was to contain costs, and concluded that allowing parties to seek recovery of damages above their PIP coverage, but below statutory amounts, would contradict that intent.

For now, then, there’s a bit of a risk in choosing a lower PIP amount. You’ll be able to save some dollars on your premium, but you could have tens or hundreds of thousands of dollars of unrecoverable losses if you are in an accident.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

Your Remedies in New Jersey after Home Improvement Fraud

The Protections Provided by the New Jersey Consumer Fraud Act

Improvement FraudIt seems there are few things in life more challenging, frustrating and often unsatisfactory than home improvement projects. It doesn’t seem like it should be that complicated, but home remodeling and improvement efforts are frequently rife with delays, shoddy work, mistakes and outright fraud.

In New Jersey, there’s good news—there’s a law that specifically applies to home improvement agreements. It can give you the legal tools you need to combat unnecessary delays, construction defects, disputes over performance, and overcharging.

What Is the New Jersey Consumer Fraud Act?

The New Jersey Consumer Fraud Act (NJCFA) is a written law, applicable to the sale of goods, services and real estate, that bans “unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact.” The courts in New Jersey have held that home improvement contracts are particularly prone to instances of consumer fraud. Accordingly, extensive regulations have been adopted governing home improvement contracts. For example, the NJCFA requires that all home improvement agreements and any change orders be in writing and signed by both parties. Contractors must also provide detailed information, including, among other things:

  • A contractor registration number
  • A telephone number for the contractor’s insurer
  • A description of work to be done and materials to be used
  • The total purchase price, including any finance charges
  • The date the project will begin and the date it is expected to be completed
  • A written copy of any warranty or guarantee offered
  • Notification of the customer’s three-day right to cancel

The Requirements for a Legal Claim under the NJCFA

To prevail on a claim under the New Jersey Consumer Fraud Act, you must show three things:

  • The contractor engaged in an illegal or prohibited practice
  • The engagement in that act caused you to suffer losses
  • Your losses can be ascertained

The act may involve affirmative conduct, a known omission or failure to act, or a violation of an administrative regulation.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

Proving that a Death Was Wrongful

The Requirements for Recovering Compensation after the Death of Another Person

Recovering Compensation When your family member dies because of the wrongful act of another person, you have the right to seek damages for all your losses. You can seek compensation for the intentional killing of a loved one, but, as a practical matter, most wrongful death actions are based on allegations of negligence.

As the party initiating a legal claim, you will have the “burden of proof.” Under the laws of New Jersey, that means that you must produce evidence that would lead a jury to rule in your favor. With any personal injury claim, including wrongful death lawsuits, the burden of proof is established as “a mere preponderance of the evidence.” In essence, that means that you must demonstrate to the finder of fact (usually the jury) that your presentation of the facts has more credibility and weight than the defendant’s version of what happened. It’s a considerably lower burden of proof than “beyond a reasonable doubt,” the standard in criminal proceedings.

A wrongful death claim is essentially a personal injury claim. When brought under a theory of negligence, it requires a showing that:

  • The at-fault party did not act as a reasonable person would under the circumstances (in legal terminology, the defendant breached the duty of care)
  • The breach of the duty of care was both the actual and the proximate cause of an accident—the accident would not have happened “but for” the defendant’s conduct; and the accident was reasonably foreseeable as a result of the breach of the duty of care
  • You suffered actual losses—Your losses were not covered by insurance or were not to items that had no value.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

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