Injured by a USPS driver? You might be able to sue the USPS.

Claims against the postal service can be tricky because the law with respect to these types of claims is unique.  Unfortunately, injured parties cannot simply file a lawsuit against postal service like you would against any other negligent driver.  Instead, you must comply with the Federal Tort Claims Act (“FTCA”).  Running afoul of the FTCA might negatively affect your rights.  As such, you need an experienced personal injury lawyer Memphis trusts to help you navigate this unique area of law.

United States Postal Service delivery vehicle

A brief history on suits against the federal government

Years ago, people could not even sue the federal government based on the legal doctrine of sovereign immunity, which is basically lawyer-talk for the notion that the government has to give you permission to sue it.  Stated differently, the federal government has to waive its sovereign immunity and consent to being sued.  Thankfully, Congress did just that by passing the Federal Tort Claims Act in 1946. 28 U.S.C. §§ 1346, 2671-2680.

 

Specifically, the FTCA allows suit against the federal government:

[F]or money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1).

As you can see, the FTCA is broad in that it allows injured parties to bring suit for the negligence of a government employee.  However, there are several unique aspects of the FTCA that can be tricky.

What’s different about claims brought under the FTCA?

  1. Administrative process

The most significant difference between filing a claim against a private individual and bringing one against the federal government for its employee’s negligence is the pre-lawsuit administrative process.  For claims brought under the FTCA, claimants must file a claim with the appropriate federal agency before filing their lawsuit. 28 U.S.C. 2675(a).  If the claimant does not comply with the administrative claims procedure, he or she cannot file suit in federal court and risks losing his or her rights altogether.

  1. Statute of limitations

Another notable difference is the statute of limitations for FTCA claims.  The FTCA replaces the state statute of limitations with a federal statute. See Chomic v. United States, 377 F.3d 607, 610 (6th Cir. 2004).  FTCA claims are subject to two (2) different limitations periods under 28 U.S.C. §§ 1346(b)(1):

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

As you can see, the FTCA essentially has two (2) different statutes of limitations.  One for the administrative claim and another for the eventual lawsuit if the claim is denied or ignored.

  1. Attorney fees

Another significant difference is that the FTCA establishes a cap for attorney fees of 25% for litigated matters and 20% for claims resolved during the administrative process. 28 U.S.C. § 2678.

Exceptions to the waiver of sovereign immunity

Under the FTCA, there are several types of claims for which the federal government retains its sovereign immunity and does not let individuals file suit regardless of whether a federal employee was negligent.  This is commonly referred to as an exception to the waiver of sovereign immunity.  One notable exception is for discretionary functions.  Pursuant to 28 U.S.C. § 2680(a), injured parties cannot sue the federal government for “[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”  Application of the discretionary function exception can be complex.  At its core, though, the discretionary function applies (meaning the government cannot be sued) when a government employee is exercising permissible policy judgment. Stated differently, the exception does not apply when there is a violation of a mandatory policy. See United States v. Gaubert, 499 U.S. 315, 322-325 (1991).

The discretionary function exception along with several others can be difficult to analyze and tricky to navigate.  If you have been injured in an accident with a USPS employee, you need an attorney that understands the unique requirements for bringing claims under the Federal Tort Claims Act.

If you need help with a potential FTCA claim, call us today at (901) 372-5003 for a free consultation.

Mental Health Records in Custody Proceedings

During custody proceedings, including divorce, Tennessee courts have a duty to protect the best interests of children. Courts must also respect patient privacy and encourage individuals to seek treatment. When one parent alleges that another parent has mental health issues, Courts balance the interests of the children and the privacy of parents. The Tennessee Court of Appeals addressed these concerns in the case of Culbertson v. Culbertson, 455 S.W.3d 107 (Tenn. Ct. App. 2014).

The Culbertson allegations.

The mother alleged that she should be named as the primary residential parent. The mother alleged that the father had a history of mental health issues, including depression. In response to the allegations, the father denied that he was incapable of caring for the minor children. He also agreed to submit to a mental health evaluation by a licensed psychologist. Pursuant to Tennessee law, a party can agree to a Rule 35 health evaluation.

The psychologist concluded that the father did not represent a threat of harm to his minor children. He also agreed that father should be permitted to have regular parenting time with his minor children. Not satisfied, the mother requested that the father submit to a second evaluation. Additionally, she also asked for all of his mental health records from each and every mental health professional.

The mother argued that it was necessary to have all of father’s records to challenge the findings from the first evaluation. She also argued it was necessary to demonstrate father’s mental health status to the court. Father argued that Tennessee protects the confidential records of individuals pursuant to a psychologist-patient privilege. As such, mother could not access the records.

After this, father and mother submitted to a joint evaluation by a second psychologist. During this second evaluation, the father permitted the psychologist to discuss the case with prior mental health practitioners. Ultimately, the second psychologist agreed with the conclusions of the first evaluation. Specifically, father did not represent a threat of harm to his minor children. The second evaluation concluded that father should enjoy regular time with his children. After this, mother requested all of father’s personal, confidential mental health records again.

The Court’s conclusions.

Ultimately, the Court of Appeals mostly agreed with father. Specifically, the Court of Appeals concluded that it is vital to protect the psychologist-patient privilege in Tennessee. The rationale of the Court was that individuals should be open and honest with their mental health professionals. Further, the Court reasoned that if the mother gained access to father’s records, mental health treatment would be discouraged.

The Court further reasoned that there was no need for mother to gain access because two psychologists had evaluated father. They both agreed that he did not represent a threat of harm to his minor children. As such, the submission to a Rule 35 evaluation struck a balance between the best interests of the minor children and father’s privacy. As such, if you are concerned that your spouse or a parent of your children may represent a threat of harm to your child or children, contact a family lawyer Memphis, TN trusts.


Wiseman Bray Attorneys

If you are considering filing for divorce, or have other family law related questions, and need counsel to discuss family law issues, call or schedule a consultation with our family lawyer Memphis, TN attorneys at Wiseman Bray PLLC today.  Call our office at (901) 372-5003 to ask for a consultation!

Contact a Family Lawyer Memphis, TN if Life Insurance is Changed During Divorce Proceedings

Family Lawyer Memphis, TN

Tennessee Injunctions upon Filing Divorce.

Ask a family lawyer Memphis, TN about Tennessee law, which requires these injunctions. At the time a spouse files a complaint for divorce in Memphis,  TN, a set of automatic injunctions go into place.   They prevent either of the parties from taking certain actions. The parties are prevented from making changes to life insurance policies, hiding or disposing of assets, relocating with minor children, and harassing one another. These injunctions remain in place until the divorce is final or dismissed.

Unfortunately, all too often, some parties fail to abide by these rules.  A party may, in violation of the Court’s order, change life insurance beneficiaries or dispose of an asset. There are a number of remedies the other party can seek through a family lawyer Memphis, TN in order to rectify these issues.  For example, the other party may be cited for contempt of court. These issues can have large implications for assets and life insurance policies. However, a party may die before a violation is remedied.

Remedying Violations After Death.

Fortunately, the Tennessee Supreme Court took up this very issue for the first time in Coleman v. Olson. In this case, a wife filed a complaint for divorce against her husband. She then immediately served the complaint on him, and the injunctions went into effect. Unfortunately the wife became seriously ill a week after filing for divorce. While in the hospital she changed the beneficiary from her current husband to her mother. This change violated those injunctions. Soon thereafter, the wife died, and the life insurance company paid her mother all of the proceeds.

The Court could have directed that the husband be renamed as beneficiary, if the wife was not dead. However, upon a party’s death, divorce proceedings abate, and the remaining spouse becomes a widower, not a divorcee. As such, the statutory injunctions expire at the time of a party’s death.  This leaves the Court stuck since it does not have any way to enforce the injunctions or remedy the violation. Thus, presumably the husband would have been left without a remedy.

An Equitable Solution.

The Tennessee Supreme Court concluded that trial courts continue to have the equitable power to resolve such a violation. This remains true even though the divorce proceedings end at the time of the other parties’ death. The Court is empowered to consider an equitable result. The Court may use its discretion to award the life insurance proceeds among the widower and the other potential beneficiary.

In this case, the Court would therefore have the jurisdiction to decide how the proceeds should be divided between the husband and the wife’s mother. It may be equitable for all, a portion, or none of the proceeds to go to the husband. Tennessee trials courts have the discretion to fix a violation based on the circumstances. If the Court concludes that it is more equitable for the widower to receive all of the proceeds, then it may do so. Ask a family lawyer Memphis, TN trusts regarding an equitable remedy for these situations.


Wiseman Bray Attorneys

If you are considering filing for divorce, or have other family law related questions, and need counsel to discuss family law issues, call or schedule a consultation with our family lawyer Memphis, TN attorneys at Wiseman Bray PLLC today.  Call our office at (901) 372-5003 to ask for a consultation!

Why Are Bicycle Accidents So Traumatizing?

Any sort of accident that results in physical and emotional injuries can be difficult for the victim to process. Sometimes accidents happen very quickly, without much warning and are unexpected. This can be the case for those who ride bicycles as means of transportation, leisure or even sport. Any situation in which a person is sharing the road with a vehicle, is at risk for being hit. In the article here, we have talked more about why exactly bicycle accidents can be so traumatizing for the rider.

What is the main reason bicyclists get hit by cars?

Car drivers may cause a bicycle accident for a variety of reasons. Most drivers do not watch out for bicyclists nearly often enough, and may not notice a rider is next to them until it is too late. Additionally, drivers may be distracted on their cell phone or speeding in order to make it to work on-time. Unfortunately, bicyclists may pay the price for such negligence and carelessness.

What are the most common injuries that may result?

Injuries associated with being struck by a car are endless. When a vehicle exterior made of such firm materials collides with the fragility of the human body, life-threatening conditions may arise. A more extensive list of potential bicyclist injuries are listed as follows:

  • Concussion
  • Fractured skull
  • Neck & back injuries
  • Dislocated shoulder
  • Broken bones
  • Road rash
  • Muscle sprains or tears
  • Anxiety, depression, new fears
  • Facial wounds
  • Cuts from broken windshield
  • Deep bruising
  • Pelvic fracture

Can you tell me more about anxiety, depression and new fears?

Any person who has undergone a traumatic experience which caused pain can develop psychological difficulties. A bicyclist who has been hit by a car may find that he or she has started to feel anxious, depressed and have new fears about getting back onto a bike. If you are having such feelings, they should be communicated with your doctor so you can receive the help that you need to process what happened. A common condition that arises for those who were part of a particularly distressing event is called post-traumatic stress disorder (PTSD). Signs that you may be affected by PTSD after your bicyclist accident can include:

  1. Replaying the crash in your mind over & over
  2. Avoiding areas that remind you of where you got hit
  3. Withdrawing from friends & family
  4. Experiencing panic attacks
  5. Feeling down, worrisome or hopeless
  6. Triggers in environment cause you anxiety
  7. Changes in eating habits
  8. Difficulty falling asleep
  9. Feeling on edge or irritable
  10. Being too afraid to get back onto your bike

What if I want to sue the driver who hit me, am I eligible for compensation?

If the driver was at-fault for the accident happening, then you may be entitled to receiving repayment for your injury costs. Medical bills can quickly pile high especially if your condition was severe due to being hit. It is uncommon for a bicyclist to walk away from being clipped by a car totally unscathed. A bicycle accident attorney can meet with you and help you decide if filing a civil lawsuit is the route you wish to take.

 


 

Thank you to our friends and contributors at Barry P. Goldberg for their insight into bike accidents.

What Happens if I File for Bankruptcy During my Divorce?

You may be worried that your financial situation will affect your divorce as well, and it will in a few ways. Decisions about establishing child custody or support is usually unaffected by filing for bankruptcy during divorce proceedings. However, decisions about division of property will be halted.

All your property and assets become property of your bankruptcy estate when you file. All attempts to control your property or take it into possession are then halted by an automatic stay. This means that it cannot be handled or divided during your divorce proceedings. Whether you file for Chapter 7 or Chapter 13 bankruptcy will better determine how your divorce will be affected.

Filing for Chapter 7 Bankruptcy

Filing for bankruptcy can cause further complications in your divorce proceedings. A bankruptcy trustee will be appointed to you regardless if you file for seven or thirteen. In the case you file for Chapter 7, the trustee has power to sell your property to pay any creditors. The trustee will have to decide which assets are property of your bankruptcy estate and if proceeds from their sale can be used to pay creditors.

Joint property opened with your ex may even be entirely sold if you cannot exempt your interest value in the property. If the ex’s interest in the property is determined to be not included in your bankruptcy estate, then the trustee would pay the sum of the value of their interest to them after the sale of the property.

Filing for Chapter 13 Bankruptcy

A trustee is also assigned to your estate when you file for Chapter 13 bankruptcy. However, they do not sell property to creditors. In fact, a trustee must determine the value of your property and interests in order to determine the effects on your repayment plan to creditors. The amount of non-exempt property you have will affect how much you must pay.

A Chapter 13 repayment plan may take three to five years to finish paying off. Usually, you and your ex will have to get permission from bankruptcy court to finish dividing property in divorce proceedings.

Custody and Domestic Support Affected by Automatic Stay

Automatic stay may stop the process of division of property, but it won’t affect court decisions of child custody and support. Filing for bankruptcy will not affect the process of determination of who maintains custody and who pays child support; it will not stop those proceeding like it will prohibit division of property and assets.

Consult an Attorney

Bankruptcy and family law overlap in a number of ways. If you are unsure how filing for bankruptcy will affect your divorce proceedings, consult a divorce lawyer Austin, TX residents trust. They can help guide you through any complications and will provide you with knowledge of any possible issues you may face along the way.

 


 

Thank you to our friends and contributors at The Law Office of Ryan S. Dougay for their insight into divorce law.

How to Document a Car Crash in Preparation for a Lawsuit

If you have been involved in a car crash that was not your fault and you plan to file a lawsuit against the other driver, it is important that you start to gather evidence for your case as soon as you are able. If you wait too long to start gathering documentation of the accident, some of the evidence may be lost or destroyed, making it harder for you to win at trial or receive a settlement offer that you deserve. Here are a few tips for how to document a car crash in preparation for a lawsuit:

  1. Get the names of witnesses: If you are able after a crash, get the names of any people who saw the accident. Make sure to get their contact information, preferably a phone number and address. Often these witnesses will be identified in a police report, but it never hurts to make your own record. Being able to identify and locate witnesses could be a very important part of making your case at trial.
  2. Take pictures: Again, if you are able, take pictures of the crash. Make sure that you are being safe, staying out of traffic, and that you prioritize getting any medical care that you need and helping others who may have been injured in the crash. Listen to a police officer’s instructions, and be mindful that other people involved in the accident may not want their photograph taken. After the incident, if you still have your car, take photos of the damage, and consider photographing any injury to your body, such as cuts and bruises.
  3. Get a copy of reports: Request a copy of the police report and any report made by your insurance company. Though these documents are relatively easy to obtain later in the case, getting them soon after the incident can help you evaluate your claim by reading how an objective party recorded the crash. You may also be able to correct any errors that you see in your insurance record.
  4. Keep your records: Keep copies of the records you have regarding the crash including towing records, records from a salvage yard or repair shop, and estimates and receipts for repair. If you suffered physical injury during the crash, keep records from you doctor visits, including bills and referrals to other providers for physical therapy or rehabilitation services. Also, make sure that you keep pharmacy records, copies of your prescriptions, and related bills. While the previous three types of information discussed are important for proving that the accident was not your fault, information in step four will be important for proving how much money you are owned in the event of a lawsuit

Along with documenting the car crash, it is also important to considering hiring an automobile accident lawyer Naperville, IL trusts early in the life of your case. A qualified and competent attorney can give you advice for how to document the crash, can help you gather records, and can help you strategize regarding how to pursue your claim against the other driver. An attorney can also negotiate a settlement on your behalf, and, if necessary, will be prepared to take your case all the way to trial to reach a fair result for your claim.

 


 

Thank you to our friends and contributors at The Law Offices of Konrad Sherinian for their knowledge about car accidents and injuries.  

Article by Lang Wiseman Published on Law360.com — Insurance Bad Faith and Punitive Damages

Bad Faith

Insurance Bad Faith

Law360.com recently published an article by Lang Wiseman regarding Tennessee law on insurance bad faith and punitive damages.  The title of the article is “Are Punitive Damages Available in Tennessee Insurance Cases?

Following is an excerpt from the introduction of article:

“In recent years, state and federal court rulings in Tennessee have been inconsistent about whether punitive damages are available to a policyholder in an insurance coverage case.  This inconsistency arises out of differing interpretations of Tennessee’s “bad faith statute” in light of the Tennessee General Assembly’s passage of Tennessee Code Annotated § 56–8–113.”

For more information, please use the search tool on our website to locate and review additional articles and posts on business and insurance related matters, including FAQs.

_____________________________

Wiseman

Lang Wiseman

Lang Wiseman is the founding member of Wiseman Bray PLLC, and is a commercial litigator that Memphis, Tennessee knows and trusts when it comes to business and insurance matters. Lang is an honors graduate of Harvard Law School after graduating as the top graduate in the College of Business at the University of Tennessee where he was a scholarship basketball player for the Vols.  Lang concentrates his practice in commercial litigation and is an AV-rated lawyer annually recognized by his peers as one of the Top 100 Super Lawyers in Tennessee.  Among other civic endeavors, he serves on the Board of Trustees of the University of Tennessee, the Governor’s Council for Judicial Appointments, and the Vice-Chair of the Advisory Commission to the Tennessee Supreme Court on Rules and Practice of Procedure.

Memphis Car Crash, Wrongful Death & Injury

According to the Commercial Appeal headline and story from Wednesday, April 16, 2014:  “One person is dead and a half dozen others were taken to area hospitals after a 10-vehicle crash in Raleigh Wednesday evening.  Police were still confirming details about how the 10 vehicles collided at Covington Pike and Raleigh LaGrange.”
Being injured in a motor vehicle accident is especially traumatizing if it involved another driver and they were at-fault.  Wrongful death is, for obvious reasons, particularly tragic.  In one instant, you and the life of your loved ones can be  life can change forever.

Expensive medical bills, vehicle damage, and the inability to go to work can be overwhelming, and not just financially.  Injuries to the head, neck, spine and back can develop into permanent impairments.  Car wreck laws in Tennessee provide recovery against at-fault drivers for medical expenses, lost wages and pain and suffering.  Read more about the type of damages you can recover here.
If you have a question concerning your Memphis or Raleigh car wreck, motor vehicle accident, or wrongful death case, call or schedule a consultation with our Memphis-based accident lawyers at Wiseman Bray PLLC today.

Accidents Involving Parked Semis

It is intimidating to share the road with 18-wheelers even in good driving conditions. Most automobile drivers are on high alert when in the presence of these large trucks and exercise extra caution when passing or following these vehicles. But if you come across an 18-wheeler parked on the side of the road or even stopped in a lane of traffic and you are unable to stop, it is not unlike hitting a solid brick wall.  These accidents can cause severe, long-term and permanently disabling injuries and in many cases, involve fatalities. Did the truck driver follow all the required safety precautions when it stopped? How difficult is it to pursue legal action with a trucking company ? What are examples of 18-wheelers causing accidents while legally stopped?

 

  • It is extremely dangerous for a large truck to move at a very slow speed on an interstate, especially in the dark or in inclimate weather. Many drivers are fooled by the lights on the truck, thinking it is traveling at a much higher speed than in actuality. There may be several reasons for the truck to drive slow — was there something wrong mechanically with the truck causing the driver to travel at a speed considerably lower than the rest of the traffic? If the driver did not follow federal requirements that state if there is a mechanical malfunction, the driver needs to pull off the road, set up flares or the triangular warning reflectors. If the driver did not follow the correct protocol, they may be found guilty of negligence. If the truck is traveling at a very low speed because of gradual inclines in the road, they must use the right lane — a designated climbing lane if one is available — and turn on their four-way flashers.

 

  • There are occasions where an 18-wheeler stops in the center of the road because of a mechanical malfunction and are unable to get to the shoulder. The same federal regulations go into effect as if they were on the shoulder. The driver needs to  put flares or orange triangular reflectors 50 feet apart to give drivers a heads-up and time to take action to avert the stopped truck. If the trucker does not comply with these regulations, either because they chose not to or their employer did not supply them with the flares or reflectors, they run a very high risk of having someone run into the back of the truck. These crashes seldom end well, as the drivers are usually traveling at a relatively high speed and can result in serious injuries or deaths.

 

  • A truck may be disabled in the middle of the road as a result of a previous accident. Many times, it is discovered that the truck was traveling at an unsafe speed and flips over going around a bend. Drivers coming along after the truck unable to see the disabled truck and crash into the back of the 18-wheeler. If the truck driver is found to be driving in an unsafe manner, the law states that the trucking company or person driving are responsible for any accidents resulting from their irresponsible actions. In this case, it may be in your best interest to reach out to a truck accident attorney Dekalb County GA residents rely on.

 

Sharing the road with 18-wheelers can be safe so long as both the truck driver and the automobile driver both follow the rules of the road and remain attentive to conditions and circumstances happening around them.

 


If you find yourself a victim of a truck accident or want to know more information about these cases, you may benefit from reaching out to attorney Andrew Lynch, P.C.