| Auto Accidents
If I was injured in an accident, how do
I legally prove how it happened?
Negotiations with an insurance company take place in letters and on the
phone with an insurance adjuster, not in a courtroom with lawyers. So you
don't need legally perfect "proof" of anything. You just need to
make a reasonable argument -- in plain language -- that the other person
(or company) was careless, even if there are also plausible arguments on
the other side. If you make a good argument why the other person was at
fault, the adjuster will realize that if the matter ever wound up in
court, there is a good possibility that its insured person would be found
legally responsible. Companies usually prefer to pay a reasonable claim
settlement sooner, rather than risk having to later pay not only for your
injuries, but also court costs and lawyer fees.
Can I get compensation if an accident
might have been partly my fault?
Even if you might have partly caused an accident yourself, you can still
receive compensation from anyone else who was careless and partly caused
the accident. The amount of another person's responsibility is determined
by comparing his or her carelessness with your own. For example, if you
were 25% at fault and the other person was 75% at fault, the other person
must pay -- through the insurance company -- 75% of the fair compensation
for your injuries. This rule is called "comparative negligence."
A few states supposedly bar you from any compensation if your own
carelessness substantially contributed to the accident ("contributory
negligence"). But in practice, the question of whether your
carelessness actually contributed to the accident is a point to negotiate
with the adjuster. There is no formula for assigning a percentage to your
and the other person's carelessness. During claim negotiations, you will
come up with one number; the adjuster will come up with another, and
explain why you bear greater responsibility for the accident. The
different percentages you each arrive at then simply go into the
negotiating hopper with all the other factors that determine how much a
claim is worth.
What if my physical limitations made the
accident more likely or made my injuries worse?
What if you have a bad knee, which makes one leg a bit unsteady? Or if
your eyesight, even with glasses, is not very strong? If you fall on a
broken stair, are you still entitled to compensation even though someone
with stronger legs or better eyesight might not have fallen? Absolutely.
All people, regardless of physical ability, have a legal right to make
their way through the world without unnecessary danger. Owners and
occupants of property must permit no unnecessary danger to any person who
might reasonably be expected to be on the property. The same goes for
drivers and everyone else -- they must not create unnecessary danger to
anyone whose path they might cross.
How do insurance companies decide how much
they'll pay to compensate someone for an injury?
Insurance companies and lawyers use a formula to calculate a range of
compensation for an injury. The final payment figure, though, is the
result of negotiations with the injured person.
The formula is no secret. In general, an injured person will be reimbursed
for:
- Medical care
- Lost income temporary, permanent pain
and other physical discomfort
- Loss of family, social and educational
experiences.
A claims adjuster begins with the medical
expenses. Then the intangibles -- pain and other non-economic losses --
are added in by multiplying the medical expenses by 1.5 to 2 times if the
injuries are relatively minor, and up to 5 times if the injuries are more
significant. The multiplier can go still higher -- sometimes as much as 10
times medical expenses -- if the injuries are particularly painful,
serious or long-lasting. Finally, lost income is added to that amount.
Several factors raise the damages formula from the 1.5-times end toward
the 5-times end: more painful, serious or long-lasting injuries more
invasive or long-lasting medical treatment clearer medical evidence of
extent of injuries more obvious evidence of the other person's fault, and
less of your fault. You, too, can easily use this formula as the starting
point for negotiations. Once the insurance adjuster knows that you
understand the range of compensation for your injuries, negotiating a
final settlement is usually fast and easy.
Will my health insurance coverage or paid sick leave from work limit my
compensation for an accident? Whether you paid for medical care out of
your own pocket or your health insurance covered it is none of a claims
adjuster's business. The same goes for whether your lost time at work was
covered by sick leave or vacation pay. In fact, it is improper for an
adjuster even to ask about such payments. You paid for your health
insurance and earned your sick leave or vacation pay; now the insurance
for the person who caused the accident has to pay. Your own health
insurance, however, may require that, out of your settlement, you
reimburse it for some or all of the amounts it has paid to treat your
injuries.
I have just been in an automobile
accident, what is the first thing I should do?
If you are injured in an accident, it is important to seek treatment
immediately. Sometimes serious injuries do not cause immediate pain. If
you experience even minor pain after an accident, seek treatment
immediately. Remember to obtain the name, address, license number, and
insurance information from the other drivers involved.
Should I tell my version of what
happened to anyone or should I "remain silent?"
If the accident is serious, or if you are partially or totally at fault in
the accident, you should contact a lawyer prior to speaking to anyone, if
practical. Your lawyer can review the facts with you to ensure that your
statement is clear and factually correct. If necessary, your lawyer can
help you fill out any required accident reports and insurance claim forms.
You will be asked at some point to provide your version of the accident,
often by police if they are called to the scene. Most, if not all states,
will require you to file an accident report with the department of motor
vehicles. Your insurance company and the other driver's insurance company
will also want your version of the accident.
If I have been injured, who will pay my
medical bills?
Most, if not all states require drivers to carry automobile insurance.
Most insurance policies have "no fault" coverage, meaning that
your insurance company will pay your medical bills regardless of who is at
fault. If you have health insurance, you may also get coverage under your
health policy. Most health care providers will have different billing
procedures depending on whether your treatment is being covered by your
auto or health insurer. Who will pay for the damage to my car? If you have
purchased collision insurance, your insurance company will pay to have
your car fixed or will pay you the value of the vehicle in a total loss.
If you are not at fault in the accident, your insurance company will seek
to be reimbursed by the insurer of the driver at fault. If you do not have
collision, and you are not at fault, the insurer of the driver at fault
will pay for your property damage.
Can I get money for my lost wages and
pain and suffering?
Most insurers will pay lost wages upon proper proof of the loss. However,
many states have imposed limits on the ability of injured persons to
recover for pain and suffering. For instance, in Massachusetts, you must
have incurred in excess of $2,000.00 in reasonable and necessary medical
treatment bills before you can sue for pain and suffering.
If I decide to sue, will I have to go to
court?
Most car accident cases settle out of court. In many cases, it is clear
who was at fault in the accident. Upon proper proof of damages and medical
documentation, insurance companies will settle the claim without the need
for filing a lawsuit or having a trial. However, in some cases, the
insurance company may deny liability on a claim and a lawsuit will be
necessary.
What happens in a lawsuit?
A lawsuit begins by filing a complaint. The person filing the complaint is
called the plaintiff and person against who the complaint is filed is
called the defendant. The defendant must file an answer addressing the
allegations contained in the complaint and must raise any defenses the
defendant may have. The defendant's insurance company will hire an
attorney to represent the defendant and will pay any damages, up to the
policy limits, that the plaintiff recovers in the lawsuit.
What happens next?
The defendant may submit written questions to you to be answered under
oath and may ask you to provide documents. Your attorney will assist you
in the preparation of these materials. You may also be called for a
deposition, where the defendant's attorney will ask you a series of
questions before a stenographer. Your attorney will help you prepare for
the deposition and will attend the deposition with you. Your attorney will
also object to any improper questions asked during the deposition. Your
lawyer will also likely submit questions to the defendant, request
documents from the defendant, and conduct the deposition of the defendant.
Witnesses to the accident may also be called in for depositions, but this
is not usually done in small cases.
What happens at trial?
If the case goes to trial, the plaintiff goes first and presents his or
her witnesses, documents and any other evidence which helps prove the
plaintiff's case. The defendant then puts on his or her witnesses,
documents and any other evidence in defense. The case is then presented to
the judge or jury, who decides who wins and, if the plaintiff wins, the
judge or jury decides how much money the plaintiff gets.
If I receive other benefits, such as
health insurance as a result of the accident, will I have to repay those
benefits from my settlement?
Yes. Your health insurer can file a lien on your case, in which case you
will be required to pay these liens from your settlement. Your attorney
can help to negotiate these liens and most insurers will be reasonable in
negotiating the liens. |
