What is the difference between federal and state court for my personal injury action?

Federal Courts only have jurisdiction over personal injury claims when “diversity” between the parties exists.  Diversity is all about what state each party resides in.  Diversity jurisdiction exists where all defendants are from different states than all plaintiffs and the amount in controversy exceeds $75K. If a party on opposite side is from the same state, diversity is destroyed. However, persons on the same side may be from the same state.   If no diversity exists, then the case belongs in State Court.

When filing a claim where diversity exists, state court is still a viable place for the injured person to choose, and most often they do.  It then becomes the Defendants’ right (if they all agree) to transfer it to Federal Court.  Deciding where to file is not always an easy task.

Advantages to federal court:

·         Process is more streamlined, usually moves faster than state court.

·         Electronic filing in all Federal Courts but only in some state courts – this saves on expenses.

·         You get pre-disclosure of information up front before the lawsuit really gets going so you know better what the issues are.

·         Federal courts tend to be less tolerant of delays from either side, and delay is not what plaintiffs want.

·         Settlement conferences almost always are offered and usually encourage settlement for smaller cases.

Disadvantages to Federal Court:

·         You have to get all 12 jurors to agree on verdict in Federal Court whereas in State Court you only need 9.  This makes it tougher to get a verdict in Federal Court.

·         Deadlines are stricter and sometimes easy to miss, which in some case can end a case.

·         Most motions require supporting memoranda, which means a lot more work has to be done causing expenses to be higher.

·         Discovery is usually limited in terms of how many people can be deposed or how many questions can be asked, which makes it tougher to get the information you need sometimes.

Another difference between State and Federal Court is that Federal Judges are appointed by the President of the United States while State Court Judges are elected by the people of their local district.  This does not necessarily mean one side or another would prefer a particular Court, but for the most part, Defendants tend to prefer Federal Court while Plaintiffs tend to prefer State Court when all the factors above are considered.

If you have a question about your civil case and which Court system it could or should be in, please give us a call for a free consultation at 601-948-8005.

Ashley Hendricks

I got hurt while working on the water. What do I need to know?

In short, the name of an experienced attorney.  Injuries that occur at work for those men and women who work on or around the water can be broken into two classes of cases: Longshore and Jones Act.  Undoubtedly, you've seen attorneys advertise on television about Longshore and Jones Act cases, but what are they?  How are they different from one another?  More importantly, how do they affect you?

The Longshore and Harbor workers' Compensation Act (Longshore for short) is a federal law that requires employers to purchase and carry workers' compensation insurance - the purpose of which is to ensure that injured workers are compensated for their injuries.  Longshore applies to land-based individuals who work on or around the navigable waterways of the continental United States, but spend less than 30% of his or her work time aboard a vessel or company-owned fleet of vessels.  The period for filing a claim is one year from the date of injury or death, and must be filed with the Longshore and Harbor workers' Compensation Commission.  Benefits under the Longshore Act include payment of medical bills that relate to the injury, as well as disability or "indemnity" payments.  These payments are calculated based on 2/3 of your average weekly wage and include temporary partial, temporary total, permanent partial and permanent total disability.  The downside to a Longshore case is that there are remedies for which an injured employee will not be eligible, i.e. pain and suffering, punitive damages, etc.; however,  the upside is that proving a Longshore case requires only "more than a mere scintilla" of evidence.  Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).   

 The Jones Act, also a federal law, applies to those workers who spend at least 30% of their time working aboard a vessel.  For purposes of the Jones Act, these workers are called "seamen."  If a seaman is injured while on the job, as a result of the negligence of his employer or fellow employees, the Jones Act will allow that worker to file a lawsuit and have his claim heard in front of a judge and jury.  The period for filing a Jones Act claim is three years from the date of injury or death, and can be filed in state or federal district court.  If successful in his claim, the seaman is entitled to monetary compensation for lost wages, medical expenses, pain and suffering, and future damages.  The standard of proof is higher than a Longshore claim, but lower than what one would face in a regular negligence cause of action.

If you or a loved one has been hurt while working on the water, feel free to give our office a call.  We can assist in making sure that your rights are protected.        

Seth Thompson

My employer accidentally spilled grease on the floor and I slipped on it. I am hurting a lot. Can I sue for pain and suffering?

No.  You have a workers’ compensation claim and a workers compensation claim only.  The law says this:

                       

§ 71-3-9. Exclusiveness of liability

  The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

“Exclusive” liability is a fancy way of saying the only thing an employer has to provide for workplace injury is workers compensation coverage.  That means, medical treatment, compensation for time of work, and compensation for lost wages in the future or loss of use of a body part.  Pain and suffering cannot be recovered.  If the employer is supposed to have insurance coverage and fails to do so, it changes the game.  It opens up the possibility of making a fault claim (although most general liability policies exclude employees).  If you find yourself in a situation which way to go and whether fault may be an issue, contact an attorney with workers’ compensation experience and get free advice.

Rogen K. Chhabra

I got hurt while working for a subcontractor. Come to find out, he did not have workers’ compensation insurance. Am I just out of luck?

Not necessarily.  The law states:

                  

§ 71-3-7 (6) In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor, unless the subcontractor has secured such payment.

What this means is you go “up the chain” to whoever hired your subcontractor employer to see if there is coverage.  Sometimes there may be several subcontractors and contractors with coverage, and it will take some sorting to figure out which one is responsible.  If you are caught in a situation like this, you should consult an attorney experienced in this area before you give up.  Just because they told you they don’t have insurance does not mean you have no option.

Rogen K. Chhabra

My legislator said he voted to make our workers compensation laws better for the people of our state, is he telling the truth?

No, the new laws do not help the worker at all.  One major change that was made is a new law was written to say:

§ 71-3-7  In all claims in which no benefits, including disability, death and medical benefits, have been paid, the claimant shall file medical records in support of his claim for benefits when filing a petition to controvert. If the claimant is unable to file the medical records in support of his claim for benefits at the time of filing the petition to controvert because of a limitation of time established by Section 71-3-35 or Section 71-3-53, the claimant shall file medical records in support of his claim within sixty (60) days after filing the petition to controvert.

Prior to this law, anyone had access to the court system for workers’ compensation claims.  Now you either have to hope and pray the insurance company does the right thing and accepts the claim, or you have to go out and pay for medical records and find a doctor willing to say that your symptoms were caused by a work injury.  Often this is difficult early on because not enough information is known about the injury early in the process, and unless you can afford your own treatment you can’t get what you need to prove that the injury was work related.  This is a bit of a chicken before the egg problem that will prevent a new class of people who cannot afford their own doctor from having access to the Court system. 

It is unfortunate that our lawmakers saw fit to pass a law like this, and we expect to see challenges to the constitutionality of the law in the future.  In the meantime, if your claim is being denied by an employer or workers’ compensation carrier, you should seek legal advice from a reputable workers’ compensation lawyer to see how you are affected by this new law and what your options are.

Rogen K. Chhabra
For questions about this or any other area of the law, visit our website at www.cglawms.com or call our office at 601-948-8005 for a free confidential consultation.

When exactly are you entitled to Workers Compensation benefits

The technical law states that:

§ 71-3-7. Liability for payment of compensation

   (1) Compensation shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease. An occupational disease shall be deemed to arise out of and in the course of employment when there is evidence that there is a direct causal connection between the work performed and the occupational disease.

In English, what this means first and foremost is that fault is not an issue, and that it only matters whether you were in the scope of employment at the time of the injury.

We talk to client everyday who spend most of their time explaining everything the employer did wrong that led to the injury.  We listen, but unfortunately, unless it was intentional it makes no difference because fault is simply not an issue.  If you get hurt at work for a covered employer, you get benefits.  It’s that simple.

Scope of employment is not so simple.  There are cases where you could be off the clock and in your own vehicle and still be covered if you fall under the traveling employee section.  You may be off the clock and injured in the parking lot on the way to the car and still be covered.  You may hurt your shoulder while doing therapy for a work related neck injury and still be covered for a new injury.  There are many more examples that would challenge the definition of “scope of employment” but don’t be too quick to assume one way or another whether injury is or is not in the scope of employment.  If you have had an injury, contact an attorney and get some free advice as to how the law applies to you.

Rogen K. Chhabra

For questions about this or any other area of the law, visit our website at www.cglawms.com or call our office at 601-948-8005 for a free confidential consultation.