If
I was injured in an accident, how do I legally prove how it happened?
You
need witnesses, facts, photographs and, if you were the driver
involved, you must have insurance on your vehicle. Try to get
a police officer or some authority to prepare a report of the
incident. We can tell you how to do this. Initial negotiations
with an insurance company take place in letters and on the phone
with an insurance adjuster, not in a courtroom. You need a believable
argument as to how the accident happened -- in plain language
-- to show that the other person (or company) was careless, even
if the other side has plausible arguments against you. If you
make a good argument why the other person was at fault, the adjuster
may conclude there is a good possibility its insured person might
be found legally responsible. Some adjusters will try to settle
with you before you call a lawyer. Just remember, they are not
in business to help you get the maximum compensation for your
case. We are.
Can
I get compensation if an accident might have been partly my fault?
Even
if you might have been contributorily negligent and partly caused
an accident yourself, you can still receive compensation from
anyone else who was careless and partly caused the accident, if
the other person has insurance. The degree 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." The question
of whether your carelessness actually contributed to the accident
is a point we can help negotiate with the adjuster. There is no
formula for assigning a particular percentage. During settlement
negotiations, we might suggest one percentage number; the adjuster
will come up with another, explaining why you bear greater responsibility
for the accident. It takes experience and familiarity with the
process to deal effectively with seasoned adjusters.
What
if my physical limitations made the accident more likely or made
my injuries worse?
All
people, regardless of physical ability or disability, have a legal
right to go about their business and activities without having
some negligent person create an unnecessary danger which results
in your injury. Owners and occupants of property must permit no
unnecessary danger which causes injury to any person who might
reasonably be expected to be on the property. The same goes for
drivers and everyone else -- whoever creates an unnecessary danger
to anyone and that danger causes you injury, you are entitled
to be compensated, if that person has insurance. We can help find
out the answer to that question.
How
do insurance companies decide how much they'll pay to compensate
someone for an injury?
Insurance
companies and their lawyers require certain specific documentation
and information to calculate a range of compensation for an injury.
The final payment figure, though, is the result of negotiations
with the injured person and his/her attorney.
The formula is no secret. In general, an injured person will be
reimbursed for:
- Medical care - reasonably necessary, reasonable in cost
and incurred reasonably close in time to the date of the accident
- Lost income, pain and other mental and physical discomfort
or suffering cause by your injuries
- Loss of family, social and educational experiences.
- Property damage - up to a certain determinable value
A
claims adjuster begins with the medical expenses, out-of-pocket
costs and property damage. Then the intangibles -- pain and other
non-economic losses -- are added in. Finally, lost income is added
to that amount. Several factors raise the damages and value of
your case: more painful, serious or long-lasting injuries; more
invasive or long-lasting medical treatment; clear medical evidence
of the nature and extent of injuries; and obvious evidence of
the other person's fault. The more serious the injuries, the more
you should receive, The less serious, the less money you will
get. We can help you understand the range of compensation for
your injuries, and will handle negotiating a final settlement,
with your involvement and participation throughout the case.
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 irrelevant to the other side's responsibility
and is really 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. None the less, many adjusters will try
to get this information from you. Don't let them. The insurance
company of the person who caused the accident has to pay you.
If your own health insurance made payments, it may require reimbursement
out of your settlement for some or all of the amounts it has paid
to treat your injuries. We can help you understand your insurance
contract's reimbursement rights provisions.
I
have just been in an automobile accident, what is the first thing
I should do?
Get
as much information about the accident as soon as possible: photographs
of the damages to the cars involved and of any injuries; statements
and contact information of any witnesses. Do not rely on
police or your insurance agent to get you these. 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
so it can be documented. Stoic people who have a high tolerance
for and pain and do not seek treatment will not get paid as well
as others who document every doctor's visit. Remember to obtain
the name, address, license number, and insurance information from
the other driver(s) involved, even if the police are getting that
for an accident report. Also, it is usually advisable to have
a police report. You must get a copy to make certain it is accurate
and contains information you think is important. Also, to make
certain nothing is included which you believe is incorrect.
Should
I tell my version of what happened to anyone or should I "remain
silent?"
Obviously,
you must answer questions asked by an investigating police officer.
What you say to an officer is usually summarized, sometimes inaccurately.
If the accident is serious, or if you are partially or totally
at fault in the accident, you should contact us as soon as possible
and certainly prior to speaking to anyone else, if practical.
We can review the facts with you to ensure your statement is clear
and factually correct. If necessary, we can help you fill out
any required DMV reports and insurance claim forms. Remember,
the other side's insurance carrier can and will use what you say
in your statement to defeat or cast doubt on your claim. We advise
our clients never to give a statement other than by deposition.
If
I have been injured, who will pay my medical bills?
California
requires drivers to carry automobile liability insurance. If you
have medical payment provisions in your own policy, your insurance
company should pay your medical bills up to the limit of your
protection, regardless of who is at fault. But they sometimes
pay only what they think is "reasonable and necessary".
Ask us. If you have health insurance, you may also have coverage
under your that policy. Most health care providers 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 estimated
value of the vehicle if it is declared a "total loss". A "total
loss" only means the repairs cost more than the car is worth.
Try to get a written estimate of the repair costs anyway. Most
repair shops will do that at no cost. 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 your
own collision insurance, and you are not at fault, the insurer
of the driver at fault should pay for your property damage. But
don't be surprised if they delay and don't answer your phone calls.
Can
I get money for my lost wages and pain and suffering?
Most
insurers will usually pay your lost wages upon proper proof of
the loss and liability. Your employer should be asked to indicate
your wage rate and time taken away from work because of your injuries.
This is true even if your employer does not deduct from your pay
the time lost from work because of your injuries. The other negligent
party is not entitled to be benefited by such arrangements.
If
I decide to sue, will I have to go to court?
The
vast majority of 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
may settle the claim without the need for filing a lawsuit or
having a case go to trial. However, in some cases, the insurance
company may deny liability on a claim and a lawsuit will be necessary.
Also, some carriers make pursuing a claim so difficult and stressful
that people give up and do not contact a lawyer. In California
there are 6-month limits to sue a governmental agency and 12 months
if you are an adult suing a non-government agency. We can go over
the facts to help answer this question. If you wait too long,
you may wind up not being able to file a lawsuit at all.
What
happens in a lawsuit?
A
lawsuit begins by filing a complaint in the proper court. Unless
yours is a very small case, with little damages and minor injuries,
you should at least consult us. It costs you nothing. The person
filing the complaint is called the plaintiff and person against
whom 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 the insurance company) and will pay any provable
or awarded damages, up to the policy limits, that the plaintiff
is awarded in the lawsuit.
What
happens next after a complaint is filed?
The
defendant may submit written questions called interrogatories
to you to be answered under oath and may ask you to provide documents
which support your claim. We 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 in
the presence of a stenographer, who writes all of the proceeding
into a booklet or transcript. Again, we will help you prepare
for the deposition and will attend the deposition with you. During
the deposition, we will object to any improper questions asked
of you and may ask questions ourselves to clarify anything you
said that may be unclear. We will also submit questions, request
documents, and conduct the deposition of the defendant. As a party,
you are entitled to be present during the defendant's deposition.
Witnesses to the accident may also be called in for depositions,
but this is not usually done in smaller cases. Usually, the case
will have to go through some form of Alternative Dispute Resolution,
such as mediation or arbitration. We can explain these to you.
Most cases resolve by this point. If not, the case will be set
for trial.
What
happens at trial?
If
the case goes to trial, the plaintiff testifies first and we will
present your witnesses, documents and any other evidence which
helps prove your case. The attorney for the defendant then presents
his or her witnesses, documents and any other evidence in defense.
The case may be heard by a judge only, or by a judge and jury
to decide who has won the dispute. If the plaintiff wins, the
judge or, if it's a jury case, the jury decides how much money
the plaintiff should receive. Sometimes, especially in larger
cases, the losing side may file an appeal of that decision. Some
appeals can even go to the California Supreme Court if they present
a unique point of law that requires review. That is relatively
rare but it does happen.
If
I receive other benefits, such as payments by my health insurance
as a result of the accident, will I have to repay those benefits
from my settlement?
Yes,
if your health insurer has filed a lien on your case or if a government
agency has passed any of your bills. If so, you will be required
to pay these liens from your settlement. We can help negotiate
these liens to help you optimize the amount you receive for your
case after all is said and done. Remember, we do not charge for
consultation and we can help you handle these issues at a time
when you most need us.
