Many times when people suffer from personal injuries, they have several questions: What should I do next? How do I know if I have a case? What exactly is negligence? How do I talk with the various insurance companies involved? There are several things to be aware of if you have experienced a personal injury. First, take a deep breath, you are not alone. Often, people feel they have lots of questions with nobody to answer them. You and your family should not struggle to find these answers alone. The following is a general guideline of dos and don’ts when a personal injury has occurred.

If you or a family member has been in a personal injury accident—
DO:

• Keep a disposable camera in your glove compartment or someplace handy to take pictures of the damage to property and/or physical injuries. If an accident occurs, you will have evidence of the accident and damage to the vehicles involved. If you do not have a disposable camera, and you have a cell phone with photograph capabilities, use your cell phone.
• Collect all pertinent information from the other person(s) involved—names, addresses, telephone numbers, driver’s license numbers, insurance card information, etc. This is very important, as you or your attorney will need to contact the other party and/or his or her insurance company at some point and will need documentation of this information.
• Get the names, addresses and phone numbers of any witnesses. This is crucial. After you’ve made sure that you and any other persons with you are alright, if you are able, collect information from the other parties involved, then look around for witnesses and take down their personal information.
• Notify police officers on the scene of details of the accident that you can recall, and let the officer know if you are experiencing pain. This is imperative, as the officer on the scene will take down statements from each party, including accident details, as well as information as to any injuries. These accident reports are available to insurance companies and may be used in the event of a trial. Also, be sure to seek medical attention immediately if you are injured.
• Contact a reputable personal injury lawyer as soon as possible after you’ve received the proper medical attention and direct all requests for information, statements and signed documents to your attorney. Before entering into a relationship with a lawyer/law firm, look at their credentials. Hauptman, O’Brien, Wolf & Lathrop is AV peer review rated, and with over 100 years of combined experience, we are the Omaha law firm with the experience to work for you.

If you or a family member has been in a personal injury accident—
DON’T:

• Don’t speak to an insurance adjuster regarding any matter related to your injuries OR give written or recorded statements to anyone about your case. Make sure you speak with an attorney before speaking to any other third parties, including insurance adjusters.
• Don’t sign checks or any other documents without first checking with your attorney.
  This can drastically affect your right to any future claim. Make sure you have consulted legal counsel on the matter and understand how to handle your situation properly.
• Don’t fail to contact your attorney if you are approached by any person or organization in relation to your case. Once you hire an attorney, any person or organization seeking to obtain information about your claim may only speak with your attorney, they may not contact you directly. Your attorney will be able to provide the proper and/or necessary information.

The work zone environment is dangerous—for both drivers and roadway workers. Large, slow-moving vehicles frequently enter and exit work zones, while workers on foot perform duties throughout the area. Research from the Federal Motor Carrier Safety Administration (FMCSA) shows large trucks have more accidents in work zones than other vehicles. Passenger-vehicle drivers, congestion and visibility issues can complicate the work zone environment. FMCSA advises professional drivers to:

• Fasten your safety belt.
• Slow down.
• Stay alert.
• Plan ahead.
• Give yourself plenty of room between your vehicle and the vehicle in front of you.
• Drive defensively.

The attached article from the National Safety Council provides more information.

It’s road construction season – Be prepared

In Pardae v. Pardae, 258 Neb 101, 602 NW2d 657 (1999), the Nebraska Supreme Court adopted the analytical approach.  The Nebraska Supreme Court pointed out that in determining what assets constitute a marital estate and how property should be divided, Nebraska, by statute, is an equitable property distribution jurisdiction.  The Court specifically noted,

In equity, there is rarely one tidy answer that fits every size and type of problem that courts are called upon to resolve.  It is precisely for this reason that a principled approach to this issue should be consistent with the basic policy rule that the marital estate should include only property created by the marital partnership. Id. at 108.

The Court defined the analytical approach as that approach where courts analyze the nature and underlying reasons for the compensation.  It further stated the core of the analytical approach is its recognition that the classification of the award depends upon the nature of the underlying loss.

It was the opinion of the Nebraska Supreme Court the analytical approach was much more consistent with the basic rule that the marital estate should include only property created by the marital partnership, and the Court adopted that approach.  The Court reasoned compensation for purely personal losses is not in any sense a product of marital efforts.  Id. at 109.  The Court therefore held compensation for an injury that a spouse has or will receive for pain, suffering, disfigurement, disability or loss of post-divorce earning capacity should not be equitably included in the marital estate.  Id. On the other hand, compensation for past wages, medical expenses, and other items that compensate for the diminution of the marital estate should be equitably included in the marital estate as they properly replace losses of property created by the marital partnership.  Id at 110.

The burden of proof to show the property is non-marital is on the person making the claim.  Therefore, in those cases where the party making the claim that personal injury proceeds are non-marital property must prove all or a portion of the personal injury compensation is for purely personal loss or loss of future earning capacity.  The Court stated there is a presumption proceeds from personal injury or workers’ compensation settlements or awards are marital property.

In order to determine what portions of a workers’ compensation award are marital property or separate property, a court must consider the following factors: “(1) the purpose of the award, such as whether it was made for lost earnings, loss of future earning capacity, or some other purpose; (2) the time period of any diminished earning potential or disability; (3) the nature and date of the underlying injury; and (4) the terms of the award.”  Gibson-Voss v. Voss, 4 Neb App 236, 242 NW2d 74 (1995).

II. CHILD SUPPORT.
In Maricle v. Maricle, 221 Neb 552 (1985), with regard to the award of child support, the Nebraska Supreme Court affirmed the trial court’s award of child support relying on a prior similar case which held the husband, although not capable of earning a wage, did have earning capacity within the meaning of Neb Rev Stat § 42-364(3).  The Court noted that Nebraska statute does not limit child support payments only to be paid from wages.  Specifically, the Court stated § 42-364(3) states in part, “in determining the amount of child support to be paid by a parent, the Court shall consider the earning capacity of each parent.”  Id. at 555.  The Court further noted:

It has been the law of this state for many years that in determining the amount of child support to be awarded, the status, character, and situation of the parties and attendant circumstances must be considered.  The financial position of the husband as well as the estimated cost of support of the children must be taken into account.

With regard to the earning capacity of each parent, the Court held ”earning capacity” refers to the overall capability of a parent to make child support based on the overall situation of the parent making such payments and that overall situation includes monies available to the parent from all sources, including investment income, even when that investment income is derived from personal injury proceeds.

III. CONCLUSION.
In a nutshell, Nebraska is an equitable distribution jurisdiction, and therefore equity allows the court to consider various factors when determining what portions of any workers’ compensation or personal injury award are to be considered marital property or to be taken into consideration in awarding child support.  Therefore, there will be no hard and fast rule.  However, it can be safely said that any part of an award which is attributable to pain and suffering and/or disfigurement will certainly be the sole property of the injured party.  With regard to a property settlement, any amount for future earnings will also be considered the sole property of the injured party.  However, when considering child support, any amounts attributed to future lost earnings will be taken into account when determining the amount of child support to be paid.

*Data last verified Sept. 9, 2008 ]]> http://www.hauptman-obrien.net/2009/07/fatalities-in-constructionmaintenance-zones-1997-2007/feed/ 0 http://www.hauptman-obrien.net/2009/05/keep-kids-safe-don%e2%80%99t-leave-your-grill-unattended/ http://www.hauptman-obrien.net/2009/05/keep-kids-safe-don%e2%80%99t-leave-your-grill-unattended/#comments Mon, 11 May 2009 20:10:26 +0000 Timothy J. O'Brien http://localhost/~brightmix/anderson/howl/?p=54 Each year, more than 40,000 children are sent to the hospital because of burns—many of them are from outdoor and patio grills. Watch this public service announcement from Hauptman, O’Brien, Wolf & Lathrop to learn more—and keep an eye on that grill!

The legislation would invalidate mandatory arbitration provisions which are found in the fine print of many nursing home admission agreements, requiring that any dispute between the facility and a resident be resolved through a private arbitration process which is insulated from the public view.

Most families and residents are unaware that they are signing away their right to file a nursing home lawsuit in open court, and the non-negotiable provisions have become increasingly more common in recent years.

The Fairness in Nursing Home Arbitration Act of 2009 is bipartisan bill that was introduced in the U.S. Senate on March 4, 2009 by Senator Herb Kohl (D-WI) and Senator Mel Martinez (R-FL). The bill was introduced last week in the U.S. House by Rep. Linda Sanchez (D-CA).

The bill does not ban the use of nursing home arbitration to resolve disputes between a facility and a resident, but would remove pre-dispute agreements that force the family to arbitrate instead of going to court to hold the facility accountable for nursing home abuse and negligent treatment of residents.

The nursing home arbitration process is generally seen as more favorable to the facility, as the panels selected in the agreements to hear the disputes normally receive a large share of their business from the nursing home industry and it is very difficult for a resident or their family member to obtain a fair resolution of their claim.

“The Fairness in Nursing Home Arbitration Act will make sure negligent nursing home corporations can be held accountable by our most vulnerable citizens,” said President Les Weisbrod of the American Association for Justice. “This bill will prevent nursing home corporations from unfairly preying on seniors and stripping away their legal rights. Arbitration should only be voluntary, not hidden away in the fine print of contracts during our seniors’ greatest time of need.”

The Fairness in Nursing Home Arbitration Act was originally approved in September 2008 by the Senate Judiciary Committee in the 110th Congress and no amendments have been made to it since then. It was approved by the House Judiciary Committee in July 2008.

In the last session, the bill did not come to a full floor vote and failed to pass through Congress.

Story taken from www.aboutlawsuits.com.

The attached article from the National Safety Council provides information on the following:

• Slip, trip and fall prevention
• Fire prevention
• Poison prevention

This “5 minute safety talk” shares information about employer’s and supervisor’s roles regarding alcohol and drug policies in the workplace.