Certainly, injury lawsuits (and other civil claims) involving multiple defendants can quickly become complicated, particularly when it comes to co-defendant insolvency and allocation of liability.
If you have been sued by a plaintiff in a case in which there are multiple defendants, you may be wondering how the existence of co-defendants will affect your strategy and overall liability. For a clearer understanding of how to proceed, it’s important that you consult with a skilled North Carolina civil litigation defense attorney who has experience handling claims in which there are several co-defendants.
So, how does North Carolina law address the issue of multiple defendants? The laws are actually quite straightforward, but we’ll use some examples to help contextualize its application in the real world.
Joint and Several Liability
North Carolina applies the doctrine of joint and several liability, which puts a rather large burden on the defendant(s). Under joint and several liability, each and every defendant involved in a civil lawsuit — no matter their actual fault — is liable for the entire amount of damages. If the defendant pays above their “pro rata” share (given their actual fault), then North Carolina law allows the defendant to file suit against their co-defendants and recover the excess that they paid.
Sounds complicated, right? Don’t worry — let’s shine a light on all this legalese with a brief and simple example.
Suppose that you are being sued in a motor vehicle accident case in which there was a multiple car pileup. You are one of two co-defendants. The plaintiff is asserting total damages of $250,000. Regardless of how much at fault you and the co-defendant are separately for the plaintiff’s injuries, the plaintiff may recover fully from either of you. For example, if you are financially insolvent and lack adequate insurance coverage, the plaintiff may choose to recover the $250,000 in its entirety from your co-defendant, who may have adequate insurance coverage to pay out the damages.
Contribution
North Carolina law does give each defendant the option of filing suit against their co-defendants and seeking “contribution” for the excess damages they paid. How does it work? Let’s return to the previous example.
Suppose that the court found that between you and the one other co-defendant in the motor vehicle accident, you were each 50% at-fault for the accident. Now, suppose that the plaintiff recovered fully against you. In essence, you paid 100% of the damages ($250,000). In North Carolina, the law of contribution would allow you to file suit against your co-defendant and recover the excess damages (you were technically liable for only $125,000, but paid twice that amount) that you paid. As such, you could force your co-defendant to pay the remaining $125,000 as contribution.
Despite the fact that contribution is available, the fact that defendants in North Carolina have to seek contribution puts a rather large and unfair burden on defendants. Further, it can be frustrating to recover when your co-defendant is insolvent.
It is the Department of Homeland Security that published the rule that has started attracting foreign business owners into the United States so that they are able to take advantage of business and commerce deals. This increases spending within the country, creates jobs for American citizens and improves innovative ideas and concepts throughout the nation. The parole is to grant an authorized stay in the United States for these overseas business men and women through a case-by-case situational provision. When these persons are able to prove their commerce does improve the public such as employment and income benefits, they are granted time to remain within the country borders.
The DHS has provided these provisions due to the estimated near 3000 entrepreneurs that would be eligible to remain in the United States with these changes. The time permitted to stay in the country is initially set at a maximum of up to 30 months, but this could be extended for another 30 months when the criteria set by the department are met. Any extensions are up to the DHS to provide. Up to three entrepreneurs are permitted per each startup business entity which also includes immediate family such as spouses and children. One restriction to granted foreign citizens with a startup is that they are prohibited from working with any other company. However, spouses of these individuals may apply for United States work authorization.
The Stipulations of the International Entrepreneur Parole
There are certain criteria that must be met for a foreign person to be considered for the International Entrepreneur Parole regulations. This individual must have a either a substantial ownership or interest in a startup company created within five years of his or her residence in the United States. The potential that exists within the business must include a rapid growth, job creation and serious interests for America. The applicant must be well-positioned, have a substantial assistance in the organization, have an active role and be central to the company. He or she then must prove to the DHS that his or her stay in the country is of serious benefit based on the role he or she possesses in the business.
Showing that his or her stay in the United States would benefit the country may be observed through investments, capital gains, an established record of successful investment opportunities and similar items. Awards, grants and other economic items with the startup or established company must be evident. This could include job creation and research and development. Assistance to federal, state and local government entities might also exist and prove that the foreign national should remain in the United States. Partially meeting multiple requirements may be compelling enough evidence to keep the individual in the country. The potential for the startup or already growing business must be proven to the agencies involved. Implications and Legal Help If the individual seeking additional time in the United States meets the requirements, he or she could be provided with an extension to remain. However, denials are possible at any time after the first extension has been granted. This means the established company or startup must continue to provide jobs for American citizens, accrue revenue and similar factors involved. If these items fail during the first extension and the second filing, the foreign entrepreneur could face a rejection for further stays. This affects both him or her and the family. However, if the spouse has a valid work visa that is separate from the International Entrepreneur Parole regulation, he or she may remain in the United States until this is either denied or runs out.
The children of these arrangements may not apply for a work visa unless they are of an adult age, and even then there may be restrictions. This could mean that if the family is insistent on staying in the United States, the spouses may be separated if one is rejected while the other has a working visa. It is important to contact legal professionals to ensure these processes are valid and up to date. Other issues may arise that necessitate legal assistance, and it is important to have a lawyer on hand.
Initial Steps. Before doing anything else, take these initial steps.
- Step #1: Notify the CA Medical or Dental Board of the doctor’s death. - Step #2: Notify the federal Drug Enforcement Administration of the doctor’s death. When you notify the DEA, you should receive instructions on how to dispose of the remaining drugs and controlled substances. - Step #3: Talk with the office manager of the practice to determine the manager’s availability to help wind down the practice, and to create a plan of action. - Step #4: Find a business broker who specializes in the sale of medical or dental practices .What to Do with the Practice During the Interim Phase. During the interim period while the estate is selling the practice or winding it down, you will need a doctor to operate the practice. - For dentists, the law is clear. At the death of a dentist, the executor of the estate may employ licensed dentists and dental assistants and charge for their services for up to 12 months after death. Ideally, the temporary dentist keeps the practice running so that you can sell it as a going concern within the 12 months. - For physicians, the law is not so clear. By the letter of the law, the estate may not itself operate, and may not hire a physician to operate the practice during the interim period when the estate is trying to sell the practice or wind it down. Remember that the estate is unlicensed. This means that, according to the law as written, the estate must either sell or shut down the practice immediately upon the death of the physician. In the past, the CA Medical Board has permitted the estate to bring in a physician to cover the practice for the interim period while the practice is being sold. The CA Medical Board did so on an informal basis, however, and I can't tell you that it has a policy of offering this benefit. My advice is for the estate representative to call the CA Medical Board and explain the situation, and hope to receive informal permission to bring in such a coverage physician on a temporary basis. If granted permission to do so, the estate must move fast in disposing of the medical practice. I have seen estates that operated a practice up to one year after the physician’s death. This is certainly an abuse of the leeway given by the CA Medical Board, and likely constitutes the unlicensed practice of medicine by the estate, which is illegal. Employees. If you sell the practice, the employees hopefully can continue with the purchasing doctor. If you can’t sell the practice, then consider having the office manager handle the winding down of the practice, including termination of employment, payment of amounts owed at termination, COBRA notices, etc. The office manager can supervise most other actions needed for the winding down as well, for example, the giving of patient notices, payment of practice obligations, and the collection of accounts receivable. You might have to pay the office manager a little extra to stay around for this work. Patient Records. Patient records are like nuclear waste: no one wants them and no one knows how long to store them. Your best option is to find a doctor to take the patients and the patient records. If a patient requests his or her patient records, thank the patient, and deliver the records to the patient immediately. If you can’t find a doctor to take the patient records, then how long should the estate store the records? I have no easy answer. There is no general law requiring a doctor to maintain medical records for a specific period of time. Different laws have different requirements, for example, 3 or 5 or 7 years. Most litigators advise that you hold patient records for 10 years, on the theory that most claims have gone away after 10 years. If nothing else, the estate should contact the doctor’s insurance carrier to determine its requirements for record retention. You do not want to violate the contract for malpractice insurance. Many carriers provide a reduced period for retaining records after a doctor’s death. The estate should hold the records for at least the period of time required by the insurance company. Malpractice Insurance. Keep the doctor’s malpractice policy in place until it expires. For high-risk practices, consider buying a tail policy. Also, keep copies of the doctor’s prior policies until you feel safe from malpractice claims against the deceased doctor. One Year Statute of Limitations. Lastly, talk with the estate’s attorney about the statute of limitations for estate and probate matters. There is a one-year statute of limitations for bringing a claim against an estate which starts to run from the date of the death of the doctor, regardless of whether the claimant knows about it. The one-year statute of limitations might cut off a lot of possible claims against the estate. Depending on the nature of the doctor’s practice, you might feel comfortable relying on this short one-year period for protection from patient, creditor and other third-party claims against the deceased doctor. This is a difficult decision, but it’s a critical decision, so be sure to talk about it with your attorney.
