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Questions Answered by D. Michael Burke Esq
3 Answers | Asked in Nursing Home Abuse and Wrongful Death for West Virginia on
Q: nursing home wrongful death lawsuit payout in WV

Nursing home wrongful death law suit.

D. Michael Burke Esq
D. Michael Burke Esq answered on Oct 22, 2019

What is the question?

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1 Answer | Asked in Car Accidents for West Virginia on
Q: How long do you have to file a claim against someone

Neighbor across the road let a young boy operate an ATV side by side when he parked it in their driveway did not set break ATV rolled out of driveway which is sloped came down road slammed into my car uninsured would not cover because it was in my driveway I have dealt as a good neighbor thinking... Read more »

D. Michael Burke Esq
D. Michael Burke Esq answered on Aug 9, 2019

You have two years from the date of the wreck to file a suit in court.

I cannot tell from your message if two years have passed or not; you wrote "a little of two years has not can i still file . . ."

I would check your auto insurance policy to see what it says about your car being...
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2 Answers | Asked in Libel & Slander, Medical Malpractice and Personal Injury for West Virginia on
Q: I am trying to find a lawyer who will bring a malpractice case and a liable case against Sedgwick CMS

I was injured 7/3/1992. I am old WV Worker's Comp Law. I have permeant disability. Sedgwick CMS with held treatment for two years. I now have stage 4 spinal canal stenosis. In addition they had a independent doctor make a liabile statement that there was no reason I could not return to work. I have... Read more »

D. Michael Burke Esq
D. Michael Burke Esq answered on Mar 18, 2019

I do not believe that you can sue Sedgewick for anything. Your remedy was to appeal the decision in your Workers' Compensation claim. If you did not have an attorney in your Workers' Comp claim, you should have. He could have obtained a report from your doctor, and cross-examined the "independent"... Read more »

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1 Answer | Asked in Wrongful Death for West Virginia on
Q: In a wrongful death case can my lawyer give some of my settlement to other people after i signed the release form

I signed release form that stated i am the sole beneficiary and i am to get 100% of the settlement.Now my lawyer is calling my husbands family and trying to give them some of the settlement.

D. Michael Burke Esq
D. Michael Burke Esq answered on Dec 11, 2018

I would need more information to give you a specific answer to your question. You are apparently the personal representative of what seems to be your late husband's estate. That does not mean that you are the sole recipient of the wrongful death recovery, even if your husband left a will naming you... Read more »

1 Answer | Asked in Personal Injury and Animal / Dog Law for West Virginia on
Q: What is res ipsa loquitur and how would it relate to a personal injury dog bite case?
D. Michael Burke Esq
D. Michael Burke Esq answered on Nov 5, 2018

"Res ipsa loquitur" is a Latin phrase that means "the thing speaks for itself," in other words, an act or injury that does not occur without negligence on some party's fault. An example would be a doctor's cutting off the wrong leg in an operation. Without negligence, the wrong leg is never cut... Read more »

1 Answer | Asked in Personal Injury for West Virginia on
Q: If my husband is offered a job, but he can't take it - is that also part of our claim?
D. Michael Burke Esq
D. Michael Burke Esq answered on Oct 5, 2018

It can be, depending on the evidence you have. You will need to prove that a potential employer offered him a job; medical or vocational proof that his accident-related injuries and impairments prevented him from taking the job, and that your husband would have been able to perform the duties of... Read more »

1 Answer | Asked in Car Accidents and Criminal Law for West Virginia on
Q: Today in wv I was in a car accident...failure to maintain control, and 2nd offense driving on a suspended. Can I go to

JaiL when I go to plead before the magistrate?

D. Michael Burke Esq
D. Michael Burke Esq answered on Aug 23, 2018

Your question is out of my area of practice, but I believe that if you enter a not guilty plea, bail will be set. If you don't pay the bail, you will likely be held until you do make bail. If you plead guilty or are found guilty at trial, it's possible that you would be sentenced to jail. You... Read more »

1 Answer | Asked in Personal Injury and Car Accidents for West Virginia on
Q: Does the fact that the police didn't cite me help determining liability for my car accident?
D. Michael Burke Esq
D. Michael Burke Esq answered on Jul 27, 2018

Not necessarily. If the the other driver was cited, an insurance company would likely determine that the other driver was at fault. If neither driver was charged, then the insurance companies will look to other factors. In many cases, though, the investigating officer gets it wrong, and cites a... Read more »

1 Answer | Asked in Personal Injury and Animal / Dog Law for West Virginia on
Q: My dog bit our neighbor while he trespassed on our property. Can he sue me for his injuries?
D. Michael Burke Esq
D. Michael Burke Esq answered on Jun 25, 2018

Your neighbor CAN sue you, but he could have a difficult time winning the case. The nature of your neighbor's trespass, the breed of your dog, and whether or not your dog has a history of biting people could be factors in the case. You should report the incident to your homeowner's insurance... Read more »

2 Answers | Asked in Wrongful Death for West Virginia on
Q: Lawyers put me out of Estate administration 4 days prior to settlement. I started the wrongful death and had contract.

The attorney I hired, went around me to beneficiaries and they thought they were signing for another family member to sit in front of jury. They didn't know what they signed, the lawyer induced the person who set up estate after me into settling. Lawyer accepted settlement without authority. A lot... Read more »

D. Michael Burke Esq
D. Michael Burke Esq answered on Jun 19, 2018

I would need more factual information before I could give you any meaningful advice. The personal representative has the authority to settle the case. If you were in the class of persons entitled to make a claim for damages, you had a potential claim for damages from the wrongful death settlement.... Read more »

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2 Answers | Asked in Personal Injury, Products Liability and Energy, Oil and Gas for West Virginia on
Q: For Mother’s Day we had a cookout, but after starting the grill and while I was cooking it blew up in my face burning me

I got first degree burns to my face and neck, it burnt off my eyelashes and eyebrows, and has messed with my vision

D. Michael Burke Esq
D. Michael Burke Esq answered on May 20, 2018

This can be a very complicated case, and costly, too. What exactly blew up? Did the grill malfunction? Was the grill well maintained? Was it a gas grill--and did the propane tank explode? Did a connection leak?

All of these questions must be answered to determine who was at fault. But the...
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1 Answer | Asked in Personal Injury for West Virginia on
Q: My apartment complex has a fountain that kids play in and my daughter was injured

-- what are the laws about an "attractive nuisance" i keep hearing about?

D. Michael Burke Esq
D. Michael Burke Esq answered on May 7, 2018

For you to make a successful claim on behalf of your daughter, you must prove that the owner or manager of the complex was negligent. In other words, did the owner or manager do something that they should not have done, or fail to do something that should have been done, and was that negligence a... Read more »

1 Answer | Asked in Car Accidents and Personal Injury for West Virginia on
Q: I was in an accident which I was in the process of being towed the tow truck driver ask me to sit in my truck and

Release the breaks and I was hit hooked to the truck. Do I have a claim against the tow truck company also?

D. Michael Burke Esq
D. Michael Burke Esq answered on May 7, 2018

Possibly, but the far better case against the driver who hit your car while you were being towed (if I fully understand your situation). In any event, you cannot collect twice for the same injury or damage; I would pursue a claim against the tow truck company only if the at-fault driver did not... Read more »

1 Answer | Asked in Car Accidents for West Virginia on
Q: I need to ask....a few weeks back i received damage to car from the town I live around because a water worker did not

cones or signs of any kind out to warn of a pole he stuck in a water meter type whole..how do I go about getting my out of pocket back for this damage to my car for the deductable and the rental

D. Michael Burke Esq
D. Michael Burke Esq answered on Apr 8, 2018

You should talk with a local attorney who could advise you. If you have comprehensive coverage on your own auto insurance policy, you should turn it in to your company, and it sounds like you have already done so. You should also contact the town to see if there is anything it would do to help you... Read more »

1 Answer | Asked in Animal / Dog Law and Personal Injury for West Virginia on
Q: Two different people ran over two of my dogs , in a 15 minute period , while I was tending to my dog whisper a car came

Flying down the road going about 80 and swerved intentionally and hit my other dog that was down their with me , me and my fiancé had our lights on so they definitely seen us , and my dog was on the side of the road where the gravel is . Neither car stopped . Is their anything we can do ?

D. Michael Burke Esq
D. Michael Burke Esq answered on Apr 8, 2018

It appears from your question that you do not know the identity of either of the drivers. Without knowing who the drivers were, it would be impossible to take action against them. Even if you knew who the drivers were, a civil case would have limited value in West Virginia. West Virginia law... Read more »

1 Answer | Asked in Personal Injury for West Virginia on
Q: I cannot find my lawsuit that we filed on december 13 2017 anywhere. Not here or pacer??

Filed state. Yes we have a lawyer. I have the paperwork. The company still has not responded

D. Michael Burke Esq
D. Michael Burke Esq answered on Mar 29, 2018

Do you have an attorney? In what court did you file your suit--Federal or State? Pacer is Federal; if you filed in West Virginia State Circuit Court, you will need to contact the Circuit Clerk in the county where you filed your case. Might you have filed it in Magistrate Court? I will need more... Read more »

1 Answer | Asked in Personal Injury for West Virginia on
Q: Slipped in the grocery store -- there was no sign the floor was wet - are they legally required to do that?
D. Michael Burke Esq
D. Michael Burke Esq answered on Mar 16, 2018

The store's duty is to provide a safe place to shop. If the store's employees knew of the liquid on the floor, they should have cleaned it up, or at least warned that the floor was wet. If the employees knew, or should have known, of the wet floor, the store may be liable for any injuries you... Read more »

1 Answer | Asked in Wrongful Death for West Virginia on
Q: With a wrongful death settlement, can it be fought if it isn't split even between siblings?

My mom is about to receive a "wrongful death" settlement for the death of my grandmother. My grandmother was also already going through the process of sueing before she passed. My grandmother did not have a written will, but my mom was her medical power of attorney. My grandmother also had verbally... Read more »

D. Michael Burke Esq
D. Michael Burke Esq answered on Feb 21, 2018

Yes, he can fight to receive a share of the wrongful death settlement. Whether he is successful depends on the facts, particularly the nature of his relationship with your grandmother. In West Virginia, a judge must approve the amount of a wrongful death settlement, the amount of the attorney's... Read more »

1 Answer | Asked in Personal Injury for West Virginia on
Q: My neighbor left his front door open and his dog ran out and bit my daughter.

How can I get him to pay for the medical bills but not get his dog in trouble?

D. Michael Burke Esq
D. Michael Burke Esq answered on Feb 2, 2018

In West Virginia, a dog owner is liable for any damage caused by a dog running at large. If you can get the name of your neighbor's homeowner's insurance company, file a claim. The insurance company will pay your daughter's damages.

I strongly recommend that you contact a personal injury...
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1 Answer | Asked in Wrongful Death and Probate for West Virginia on
Q: Can i take my dads estate to surpream court if i feel there are attorneys doing things wrong on my dads estate

I have never been through this and my grandma is dirty i want something done my attorney isnt helping me i want tgis taken higher and im not satisfied with any of it

D. Michael Burke Esq
D. Michael Burke Esq answered on Feb 2, 2018

There is no way to answer your question without more information. When did your father die? Did he leave a will? Was his death due to natural causes, or as a result of a wrongful act? Is your grandmother the personal representative of the estate? Who are the attorneys, whom do they represent, and... Read more »

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