The reality is that, regardless of how strong the plaintiff’s case might be, recovering fair compensation in a personal injury or wrongful death case depends heavily on whether or not the negligent party was insured. Technically, the plaintiff can pursue collection on a judgment by attaching the defendant’s assets, garnishing his or her wages, and the like, but this is usually a very slow process and one that, at best, typically yields only a fraction of the amount of money to which the plaintiff was entitled.

Because of the power of the insurance company lobbyists, jurors rarely hear a word about insurance. The insurance company would much rather jurors believe that every penny of a judgment was coming out of the defendant’s pocket – the idea being that a lower judgment will result when a person, not a big insurance company, is paying the plaintiff what he or she is due. Sometimes, however, there are cases in which the insurance company is front and center in a lawsuit.

Facts of the Case

The plaintiff in a recent case filed in the United States District Court for the Eastern District of Tennessee was an insurance company that provided a $1 million renters insurance policy to the defendant, a woman who operated a daycare out of the insured premises. The insurance company sought a declaratory judgment that it had no duty to defend or indemnify the woman with regard to the alleged July 2018 wrongful death of 23-month-old twins, who drowned in a backyard swimming pool while in the woman’s care. The twins’ parents were also named as defendants in the insurance company’s cause of action, and they filed a counter-claim against the insurance company.

The parties filed various motions for judgment on the pleadings and/or for summary judgment.

The District Court’s Decision

The trial court denied the insurance company’s motion for summary judgment and granted the parents’ motions for judgment on the pleadings on their counterclaim and for partial summary judgment on the insurance company’s claims. Although the insurance company attempted to rely on a purported “childcare services exclusion” in the insurance policy in order to avoid the possibility of paying out a wrongful death claim brought by the parents for their children’s drownings, the federal district court found that “non-excluded risks” concurrently and substantially caused the twins’ deaths, thus triggering the insurance company’s duty to indemnify the defendant.

While the parents will still have to prove their wrongful death claim by a preponderance of the evidence, the fact that the insurance company will have to indemnify the defendant will make it much more likely that the parents will prevail in the case, either at trial or via a settlement.

Get Started on an East Tennessee Wrongful Death Claim

If you have lost a loved one to a swimming pool drowning or other act of homeowner negligence, you may be entitled to substantial money damages for your family member’s wrongful death. To learn more about how to assert your legal rights, contact the Hartsoe Law Firm via this website or by calling (865) 804-1011. Tennessee has a very short statute of limitations for negligence claims, so it’s important that you seek counsel immediately if you believe that you may have a wrongful death or personal injury claim.

For those of you traveling this weekend, be safe. AAA estimates that 39 million drivers will be hitting the roads, down slightly from 40 million in 2010, USA Today reports. The national auto group believes that an average $1 increase in gas prices is the reason for the slight dip in drivers.

But 39 million is still a huge number of drivers and they represent a high risk of car accidents in Knoxville and the surrounding areas this weekend. According to the National Highway Traffic Safety Administration, 989 people died on Tennessee roads in 2009. That ranked Tennessee ninth in the country in highest number of traffic deaths.

And despite tough criminal penalties for people convicted of DUI, people continue to drink and drive, causing tragic and devastating injuries and deaths. In 2009, The Century Council reports, 303 died in 2009 in alcohol-impaired crashes in Tennessee, about 1/3 of the total number of accidents.

While vehicle accidents are a risk, so are boating accidents. Tennessee had 266,185 registered vessels in 2010, which was down more than 3,000 from 2009, according to the Tennessee Wildlife Resources Agency. But despite the drop in vessels, there were 167 boating accidents in 2010, up from 2009, when there were 158. There were also 19 fatal accidents in 2010.

The Ocoee River had 34 boating accidents, tops in the state. And while boating accidents that cause trauma are a concern, drowning is also a risk. The Associated Press recently reported that two people have drowned in the Ocoee River this year.

According to the Centers for Disease Control and Prevention, there were 3,443 fatal unintentional drownings in 2007. Children are most likely to drown. Among children ages 1 to 4 who died from unintentional injuries, nearly 30 percent died from drowning.

So, whether whitewater rafting or swimming in your own pool, be safe. Swimming pool injuries can lead to lifelong injuries and brain damage. Near-drownings can have substantial effects on a child.

But what many people most look forward to during the Fourth of July weekend is fireworks. They light up the sky and are fun to watch, but they can be dangerous. Fireworks accidents claimed seven lives in 2008 and another 7,000 were injured, the CDC reoprts. The most common fireworks injuries are to the eyes, hands, fingers, arms and legs.

Here are some fireworks tips to keep your family safe this holiday weekend from The National Council on Fireworks Safety:

• Use fireworks outdoors only
• Obey local laws
• Always have water handy
• Never relight a “dud” firework
• Don’t alter or use homemade fireworks
• Don’t mix alcohol and fireworks
• Don’t let children under 12 use sparklers
• Use common sense

If you or a loved one is injured or killed in a Tennessee car accident, contact Hartsoe Law Firm, P.C. for a confidential appointment to discuss your rights with our Knoxville injury lawyers and Maryville accident attorneys. Call (865) 804-1011.

Additional Resources:

High gas prices will cut July 4 travel, AAA says, by Laura Bly, USA Today

Fireworks Safety, by Amanda Odom, CBS News

More Blog Entries:

Smokies Relief Pitcher Involved in Hit-and-run Knoxville Car Accident: June 22, 2011

Now that spring has arrived, the temperatures will be heating up enough to start jumping in the pool for a swim. Adults are reminded to make sure your kids are under constant supervision in order to prevent a swimming pool accident in Knoxville, Maryville or elsewhere in Tennessee.

Recently, a babysitter was watching over the son of a well-known trucking entertainer when a pool accident occurred. The Tennessean reports the three-year-old boy fell in the pool and almost drowned under the babysitter’s watch. The boy still showed signs of life when he was discovered in the pool so he was LifeFlighted by helicopter to Vanderbilt University Medical Center. Nine days following the fall into the pool the young boy died after being removed from the ventilator. No charges have been filed against the babysitter to date as the incident was considered an accident.

The Centers for Disease Control and Prevention report children are at a high risk of drowning accidents. In 2007, it was reported that over 20 percent of drowning victims were children ages 14 and under. For every five children involved in a pool accident, an average ratio of 1 drowns and 4 have to go to the hospital for nonfatal submersion injuries. Submersion injuries can lead to a permanent vegetative state, learning disabilities, memory problems or long term disabilities caused by brain damage.

Some parts of the state are being proactive in an attempt to minimize drowning and pool accidents this year. WBIR reports the passing of Katie Beth’s Law which took effect on January 1st, 2011. The new law requires any homeowner in East Tennessee who has a pool on their property to install a pool alarm.

Building permits will not be handed out by local governments unless the contractor specifically states a pool alarm will be installed. Electrical inspectors will only give a seal of approval to installations that have a functioning pool alarm. Pool companies are required to post signs in their place of business alerting customers about the new law. Katie Beth, the great grand-daughter of State Senator Charlotte Burks, drowned back in 2009 in a Cookeville swimming pool.

The CDC offers the following MUST DO tips to prevent drowning or pool accidents this summer:

– Learn how to swim by taking lessons and becoming comfortable in the water.

-Kids should have a buddy system when playing in the pool. Never allow a young child to swim alone unless a constant eye is kept on them at all times.

-Never use air-filled or foam toys in replacement of a life vest. These are meant as toys, not to save lives.

-Adults should know CPR, especially if you have kids swimming in your residential pool.

-Install a four-sided fence around the pool area only.

-Have a pool company install a pool alarm at the time they open the pool for the season.

If your or a loved one has been involved in a drowning or pool-related accident in Knoxville or Blount County, contact Hartsoe Law Firm, P.C. Call for a free and confidential appointment to discuss your rights at (865) 804-1011.