FREQUENTLY ASKED QUESTIONS
- What Damages Can I Recover From My Personal Injury Claim?
- How Do I Know If I Received a Fair Settlement?
- How Long Does It Take To Receive a Personal Injury Settlement?
- If I File a Personal Injury Claim, Will I Have To Go To Court?
- Do I Have To Go To The Independent Medical Exam?
- What Is The Time Limit To File a Personal Injury Claim?
- What Happens When Multiple Parties Are Involved In a Personal Injury Claim?
- What Is a Deposition?
- What Is An Out Of Court Settlement?
- When Is Hiring a Personal Injury Lawyer Necessary?
- Why Do I Need a Personal Injury Lawyer?
- Will My Insurance Rates Go Up If I File a Personal Injury Claim?
- Does The Law Limit How Many Hours a Truck Driver Can Drive Per Day?
- Does Louisiana Have State Regulations For Trucks?
- Do I Need An Attorney For My Louisiana Truck Accident Claim?
- What If The Truck Driver Who Hit Me Was Texting Before Accident?
- When Is The Trucking Company Liable For My Injuries Following a Truck Accident?
- Where Should My Truck Accident Injury Claim Be Filed?
- Who Is Liable If My Accident Was Caused By The Spilled Contents Of a Commercial Truck (Unsecured Load)?
- Who Regulates Trucking Companies?
- Is Insurance Coverage Important In a Motorcycle Accident Claim?
- Do I Need a Lawyer Following a Motorcycle Accident?
- I Was In a Left-Turn Motorcycle Accident
- Do I Need a Lawyer Following a Motorcycle Accident?
- I Was Injured In a Motorcycle Accident Not Wearing a Helmet
- How Do I Prove Who Was At Fault In a Motorcycle Accident?
- What’s The First Thing I Should Do After a Motorcycle Accident?
- Will My Health Insurance Coverage Limit Compensation For My Accident?
- In a Fatal Work Site Accident, What Is a Family Entitled To?
- In a Fatal Work Site Accident, How Much Compensation Is a Family Awarded?
- What Do I Need To File a Wrongful Death Claim?
- What Is “Survival Action” Related To a Louisiana Wrongful Death Claim
- Who Can File a Wrongful Death Claim In Louisiana?
- What Is The Difference Between Wrongful Death Claimants and Beneficiaries?
- Compensation for At-Fault Construction Site Injury
- How Can I Obtain Compensation Past Workers’ Compensation?
- Construction Site Accident Witness
- Who Is Liable If Debris Causes An Accident Near a Construction Site?
- Do I Need An Attorney After a Construction Site Accident?
- Receiving Compensation for Employer Violation of OSHA Regulation
- Suing the Property Owner after Construction Site Accident
- What Is Considered a Third Party Case In a Construction Site Accident?
- Who Regulates Construction Site Safety?
- Can I Sue While Collecting Workers’ Compensation?
- Do I Need An Attorney For a Workers’ Compensation Claim?
- Are There Exceptions That Prevent Workers From Getting Workers’ Compensation?
- Do Workers’ Compensation Benefits Cover Long-Term Conditions?
- What Is The Louisiana Workers’ Compensation Act?
- Who Pays For Workers’ Compensation?
- What Can I Do If My Workers’ Compensation Claim Is Denied?
In my opinion, not every small injury case requires a personal injury lawyer. In fact, our office often turns away cases involving very minor injuries requiring only a visit or two to the doctor. The reason? In such a case, it may not be cost-effective for you to use an attorney. After paying an attorney’s fee and covering your medical expenses, you may be left with very little or nothing. This wouldn’t be fair to you. If a client calls with a case fitting that profile, we tell them so up front, and can usually give them some free pointers on fair settlement value for their particular claim.
However, for more serious injuries, injured accident victims will usually benefit from hiring an experienced personal injury attorney. That is, you will likely recover more with the assistance of an experienced personal injury attorney than without one, even after subtracting the attorney’s fee. The reason for this is that an experienced attorney will have a better understanding of what your claim is worth. He or she will also be better able to effectively gather and present the proper evidence to support your demand and communicate the value of your claim to the insurance company.
An experienced accident and injury attorney also has the knowledge and legal authority to effectively utilize the court system. This forces the insurance company to hire an attorney and consider the cost of paying its own attorney when deciding whether to continue fighting rather than reasonably settling the claim. An insurer will still often negotiate reasonably only with an approaching trial date, actually set on the court’s calendar, and a victim’s lawyer it knows is truly prepared for trial. An experienced personal injury attorney can effectively prepare the case for trial, and try your case to a judge or jury if need be. Answering another question below, I explain why an experienced injury attorney fully prepared for trial is the surest route to a reasonable settlement without trial.
Unfortunately, there is no simple formula. If there were, then both sides would always agree on the value of a case, and no injured accident victim would ever need to hire a personal injury lawyer. But injury cases are too subjective and each case too unique to arrive at a formula. In fact, the same injury (although no two injuries are exactly alike), may affect one accident victim differently than it would affect another. For instance, a surgeon who loses a finger may have a substantial lost income claim if he or she can no longer perform surgery. The same may be true for an artist or musician. However, the same injury to a pediatrician, news reporter or college professor may produce very little or no lost income, because having one less finger, although a dramatic injury, is not crucial to his or her job performance.
In my opinion, any attorney who claims to know what your case is worth before thoroughly investigating all aspects of the claim is shooting in the dark and doing you a disservice. In fact, the bar association strictly prohibits an attorney from guaranteeing a certain result. Even after thorough investigation and preparation, valuing a claim is more an art than a science.
Ultimately, the value of your unique case is what a jury may feel is fair to award. But we never know that figure until the jury reaches a verdict. To make things more complicated, if your case were tried to two juries simultaneously, and each jury deliberated on the exact same evidence separately, they would likely arrive at different awards. Juries are made up of individual persons, each with different backgrounds, experiences and philosophies about awarding damages for injuries.
Generally speaking, the components of personal injury damages may include some or all of the following, depending upon the severity of the injury:
1.Past and future medical bills;
2.Past and future mental and physical pain and suffering;
3.Past and future loss of enjoyment of life;
4.Past and future loss of income or earning capacity;
It can be especially difficult for both sides to agree on the value of intangible elements of damage such as mental and physical pain and suffering, loss of enjoyment of life and disfigurement. One jury may value these elements very differently than another. One attorney may be much more effective at presenting and communicating the impact of such damages upon your life than another. Thus, results may vary greatly depending upon your attorney’s skill and experience in jury selection and trial presentation.
While the elements of damages are generally determined by the severity of a victim’s injuries and the resulting impact upon his or her life, other factors come into play as well. Here are some important ones:
- the injured accident victim’s credibility and likeability before a jury;
- whether or not the defendant’s conduct giving rise to the injury was a simple mistake versus egregious and reckless behavior;
- whether or not the injured accident victim bears any portion of fault;
- whether or not the victim had any pre-existing injuries to the same areas of the body;
- whether or not any aspect of the injuries or their effects are permanent; the victim’s age;
- whether or not the victim’s income has been affected at all, temporarily or permanently;
- the extent and cost of past medical treatment;
- the need and cost for future medical treatment;
- specific legal or evidentiary issues, such as whether a victim’s past criminal background, if any, will be admissible before the jury; and the parish where the case is filed (some parishes are considered more conservative, others more liberal)
With so many variables affecting the jury’s perception of a given case, you can see why no two cases are truly alike. Even if the injuries involved appear nearly identical, cases which may appear similar at first glance may actually give rise to very different valuations due to some of the other factors listed above. Properly evaluating a personal injury case requires the knowledge, experience, intuition and skill gained through years of involvement in handling them.
Except in cases of very minor injuries, an accident victim without an experienced personal injury attorney will be at a serious disadvantage when trying to determine case value and negotiating with an experienced insurance adjuster.
Assuming someone else is at fault for your accident and injuries, the at-fault party’s insurance company will be responsible for paying all accident-related medical bills. However, the insurance company will not generally pay these bills as they are incurred. Rather, the insurance company will usually pay for these when the entire case is either settled or concluded by trial in court. Until that time, the accident victim can rely upon his or her healthcare insurance, Medicare, Medicaid or any other form of available federal- or state-funded medical care coverage.
Additionally, if your claim involves an automobile accident, you should check your own automobile insurance policy coverage declarations to determine whether you have medical payments coverage under your policy. If you do, it will typically be for a limited amount; usually between $1,000 and $10,000.
If your medical bills are paid by your own health insurance coverage, Medicare, Medicaid, any other form of medical care coverage or your own automobile insurer’s medical payments coverage, you will almost always be required to reimburse them to some degree in the event that you recover from the at-fault party’s liability insurance company. Thus, in determining what may be a fair settlement from the at-fault party’s insurance company, you must determine exactly how much you will be required to repay those insurers who paid your accident-related medical bills.
In the event that you do not have any healthcare insurance, are not eligible for Medicare, Medicaid or any other form of available federal- or state-funded medical care coverage, and do not have automobile insurance medical payments coverage (or your accident is not automobile-related), we will often pay for our clients’ necessary accident-related medical care. When we do, we are reimbursed out of any recovery we obtain for you through settlement or trial. This reimbursement comes from the claimant’s settlement or judgment proceeds after the deduction of attorney’s fees.
The at-fault party’s insurance company will ultimately be required to pay you for your lost earnings and earning capacity, past and future. However, the insurance company will not typically pay for these elements of damage until the case, in its entirety, is either settled or concluded in court. If you are injured severely enough that you will be unable to work for a long period of time, you should apply for any disability insurance benefits that you may have as well as for Social Security disability benefits if you qualify.
As a personal injury attorney, I advise clients not to accept a settlement shortly after the accident if they are still experiencing pain. The risk is, once you accept a settlement and release the at-fault party and its insurance company, your claim is over. You cannot “come back later” to ask them to pay more. If your doctor later discovers that your injury is more serious than originally thought, perhaps requiring surgery, very extensive medical bills and lost time from work, then you have sold yourself short by accepting the quick settlement. So before settling your claim, you should have a firm understanding from your doctor of what exactly your injury is, when it is expected to resolve completely (or whether any aspects of it are permanent) and the nature and cost of all required medical treatment. Only with that information, can a reasoned assessment of your claim’s value can be made for possible settlement.
Your own health care coverage and automobile medical payments insurance coverage (if injured in an automobile accident) should be used to pay your medical bills even if you were injured by the fault of another party, as described in answer to question number 1 above. Your own insurance company’s collision coverage my be called upon to pay for your automobile property damage, if applicable, regardless of fault, as described in answer to question number 5 above.
Additionally, if you purchased uninsured/underinsured motorist coverage under your automobile policy, that coverage comes into play to the extent that the accident was caused by another party’s fault. If the at-fault party is uninsured, then your uninsured motorist coverage covers your injuries and damages to the extent you have such coverage. If the at-fault party has insurance, but the limits are insufficient to fully cover your damages, then your underinsured motorist coverage provides you with additional coverage, above those limits, for your injuries and damages to the extent you have such coverage.
Whether or not you hire a personal injury attorney, the day you were injured due to the fault of another, you entered a battle zone with the at fault party’s insurance company. Over the past few decades, the insurance industry has spent plenty of money to wage war against injured accident victims and their attorneys in the media and on the political front. The insurance companies= agenda is geared to bolster their own images with touching television commercials, including music and slogans such as “I’ll be there,” and “You’re in good hands.” Their further goal is to promote legislation favorable to their own profitability, and to paint the civil justice system as out of control and overrun with people receiving millions of dollars for minor or even fraudulent injuries. The goal is to taint the minds and preconceptions of jurors against accident victims and their personal injury attorneys before they even hear the facts of a given case. Some of the mass attorney advertising you see today only reinforces the insurance industry’s agenda.
Unfortunately, there are some claimants and attorneys willing to file frivolous or fraudulent claims for a buck. This abuse of our civil justice system has only made it more difficult for the legitimate personal injury victim to find justice. Fortunately, however, the insurance industry is highly capable of investigating and exposing fraud and exaggeration, especially in today’s age of advanced technology. In fact, I have personally encountered and seen claims exposed as fraudulent while working as an attorney for large insurers in the past. I have also criminally prosecuted and seen people convicted of felony insurance fraud as a prosecutor some years ago. Fortunately, the vast majority of people who bring frivolous or fraudulent claims are unsuccessful, as they should be, and some even end up in jail.
The problem for the legitimately injured accident victim, is that a dollar saved by the insurer in settling a legitimate claim is worth the same to the insurer as a dollar saved in a fraudulent claim. Insurance companies are corporations, whose one goal is profit, plain and simple. The more they pay in claims, the less profit they make.
Obviously, there is nothing wrong with having profit as a goal. A corporation must make a profit to survive. The point is, you must be aware that no matter how legitimate your claim, and no matter how badly you are injured, the insurance company’s goal is to pay you as little as possible. Period. You are merely a claim on its books, negatively affecting its bottom line, just like a fraudulent claim. You are the enemy.
The insurance adjuster’s allegiance is to his company, not you. He is not a bad person, but he has a job to do (pay you as little as possible) and is highly trained to do it well. A truly talented adjuster, a really good one, will make you feel as though you have a new friend. However, his true concern is not your physical, mental or financial well-being. His only concern is doing a good job in the eyes of his company and remaining employed or getting promoted. Despite what he may try to lead you to believe, he is not your friend. He is very much your adversary.
In my experience, insurance companies do not ordinarily offer a fair settlement until you have an approaching actual trial date, and prove to them that you are ready, willing and able to competently and effectively present your case at trial. But do not lose faith. If you have a legitimate case, you can beat the insurance company and achieve just compensation at trial. Once the insurance company becomes convinced that you are truly prepared to go to trial, but usually not until then, it will often offer a fair settlement at that point in time. However, that point in time usually comes only after much time and effort is spent by an experienced personal injury attorney who has fully prepared your case, and can effectively demonstrate actual readiness for trial.
At that point, what if they still won’t get reasonable? This does happen, but at least the waiting is over. Assuming you have a legitimate case, and a highly qualified, experienced and prepared personal injury attorney, you should be able to obtain justice at trial.
Over the years of working first for insurance companies, then later (and now) against them as a personal injury attorney representing accident victims, I have learned some common mistakes that legitimately injured accident victims often make which can negatively impact an injury claim. I call the following mistakes “The Seven Deadly Sins”:
1. The accident victim waits for days or weeks to get medical attention.
If you feel pain after an accident, you should promptly see the doctor. Many times people delay seeking medical attention thinking their pain will simply go away. If it does not, but you see the doctor for the first time well after the accident, this can make it hard to prove that your injury was caused by the accident and not some other cause.
The more time that goes by between the accident and medical attention, the more difficult it is to prove that the injury was caused by the accident itself. The insurance company will always argue that if you really had pain, you would have sought medical treatment right away. Even more importantly, however, if you have pain following an accident, it is important to get medically evaluated because you may have an injury that is far more serious than you realize, requiring prompt attention.
2. The accident victim fails to obtain sufficient information at the motor vehicle accident scene and does not call the police.
It is extremely important to call the police after a motor vehicle accident. The police officer will take witness statements and document much important information in his or her report. The officer becomes an important witness to what each person said immediately after the accident. This is crucial because some may intentionally change their stories later, and memories of the persons involved in the accident, as well as those of independent witnesses, can become less accurate as time goes by. You should also obtain accurate information from the other driver, including current address, telephone number, driver’s license number and insurance information which will be needed later. Get the year, make, model and license plate number of all involved vehicles as well.
Whether the accident is a motor vehicle accident or not, get names, addresses and telephone numbers of any witnesses. Ask them to write (and sign and date) a short statement describing what they saw. If you have a camera on your cell phone or otherwise, photograph the accident scene both from a distance and from up close. Take multiple photographs if you can.
3. The accident victim provides too much information to the at-fault driver’s insurance company immediately after the accident.
After an accident, you can expect the other driver’s insurance company to call you and ask you to give a “recorded statement” and to sign forms allowing them to request your medical or other records. You are not required to give a recorded statement or sign medical records authorizations or anything else for the other driver’s insurance company, and it is a big mistake to do so.
The insurance adjuster who takes your statement is a highly-trained specialist, and statements you make can easily be misinterpreted to later undermine your case. Do not do so unless advised to by your own attorney, and with your attorney present. Insurance companies can use medical records authorizations to request medical records not only relating to the incident in question, but also past medical records having no bearing upon the injury in question, and which they may not have a right to obtain at any point in the process.
4. The accident victim fails to keep follow-up medical appointments or follow medical advice.
Accident victims who miss follow-up doctor appointments, or fail to follow medical advice in terms of taking medication, attending physical therapy or anything else the doctor recommends, can seriously damage their claims. If the doctor recommends a course of treatment or a follow-up appointment, obviously it is important for you to comply with the recommendation. Strictly from the standpoint of your injury claim, missed appointments and failure to follow medical advice permits the insurer to argue that you must not have truly been hurting, or that your failure caused your injury to be worse than it would have been had you followed advice.
5. The accident victim fails to disclose past accidents, injuries or medical conditions to the doctor or his or her own attorney.
You need to tell your doctor (or your attorney if you hire one) about any prior injuries or medical conditions you had before the accident in question. The other side will be entitled to know how many past accidents you have been in. All insurance companies subscribe to databases that provide this information, and almost always already know how many prior accidents you have been in before they even ask you. One of the biggest reasons they ask is that they hope to catch you in a lie. If they do, they will argue that you were hiding your medical history in order to fool them (or the judge or jury) into thinking that you were hurt worse than you actually were.
You are entitled to recover from the party at fault in your accident for any aggravation or worsening of any prior injuries or medical conditions that pre-existed the accident. Your doctor, and your attorney if you hire one, need to know about any pre-existing injuries or conditions in order to properly evaluate whether the accident in question aggravated or worsened them.
An accident victim being untruthful about anything, even if completely irrelevant to the claim, can destroy even the most legitimate and serious personal injury claim. Your argument that you lied because you did not think it was important to the case will not fly. The insurance company attorney’s argument will be much better. He or she will argue that if you are willing to lie about something unimportant, you are certainly willing to lie about any other aspect of your case while asking a jury for a substantial monetary verdict. The judge or jury will agree. The insurance companies can afford good attorneys. They do not hire idiots. If you lie, you will likely get caught, and you may end up facing criminal charges for insurance fraud and perjury as well. Don’t lie.
6. The accident victim misrepresents his or her level of activity or exaggerates the effects of an injury.
Absolute truth should be maintained throughout the claims process without exception. Misrepresenting or exaggerating the effects of an injury for purposes of an injury claim is a felony crime, insurance fraud, for which one can and should be prosecuted and receive jail time and a heavy fine. It is also morally wrong and will not, and should not, be tolerated by insurance companies, judges, juries, attorneys or anyone else.
Insurance companies will often hire private investigators to secretly use cameras and video recorders to document your activity after an accident. They will also look for your on Youtube, Facebook, Myspace and other social networking sites. They will “Google” you. If you misrepresent or exaggerate the effects of an injury, chances are you will be caught.
Think nobody’s watching? Think again!
A true personal story: I call it, “Surely They Won’t Follow Me On a Family Vacation!”
Years ago, when I made my living defending insurers against personal injury claims, I was representing a large insurer against a woman claiming serious back injury from an automobile accident. When I took her deposition, she claimed to have severe restrictions in simple everyday physical activities such as carrying groceries from her car and other ordinary household chores. She even claimed that standing and walking caused severe back pain, and that she spent most of her days sitting or lying down.
My instincts told me she was not being truthful, so I convinced the insurer to allow me to hire a private investigator to conduct video surveillance. A few days later, the investigator called to tell me that “the subject” and her family and children were packing the car for what appeared to be a snow-skiing trip (the husband’s skis gave it away).
Although he would not tell me how he did it, the investigator found out exactly where they were going. I notified the insurance adjuster of this, and he agreed to pay for the investigator to travel to Vail, Colorado to continue surveillance. A week later, we had more than 3 hours of video of “the subject” bending over to buckle and unbuckle heavy ski boots, carrying her and her children’s heavy ski equipment, aggressively and beautifully skiing, and even taking a hard tumble now and then. We even got footage of her skiing while carrying her young child.
After the trip, she continued seeing her orthopedist every few weeks, still claiming severe limitations in carrying out simple daily activities. I took a followup deposition a few months later, and she described her limitations similarly. She also denied having left town at all since the accident.
Now she had committed perjury in her deposition in addition to committing insurance fraud. We could prove it. Days after we sent the video footage to her attorney, she dismissed her case at her own cost.
Insurance companies will spare no expense to prove exaggeration or fraud. The stakes are high. Their attorneys and adjusters are not fools, and they do this every day for a living. No matter how legitimate your claim may be, they will assume and hope from Day One that you are like “the subject” mentioned above who went skiing, and keep looking for ways to prove it.
7. The accident victim fails to adequately document injuries.
After an accident, you should photograph any cuts, bruising or other physical evidence of injury to your body. You should also keep a daily journal documenting what pains you felt, when, where and their level of intensity. Be as specific as you can. Describe any activities you were unable to perform or had difficulty performing or found painful. This will be extremely helpful in the claims process to describe how your injury affected your daily life. It can also help you to recall and communicate the specifics of your complaints to your doctor. But above all, be truthful, and no matter what, DO NOT EXAGGERATE!!!
The at-fault party’s insurance company will be required to pay for the damage to your vehicle. You are entitled to take the vehicle to any repair person of your choosing. If it is determined that the cost of repairing the damage exceeds 75% of the value of the vehicle, the insurance company may declare the vehicle a “total loss.” In that case, the insurer must pay the full value of the vehicle plus sales tax.
Whether or not the at-fault party was insured, if you have collision coverage under your own automobile policy, it must pay to repair the vehicle, or pay the “total loss,” if applicable, plus sales tax, less your deductible. Sometimes it is quicker to have your own insurance company pay for the property damage because it must do so regardless of fault, whereas the at-fault party’s insurance company may take more time because it must first determine whether or not it will accept fault for the accident.
If your own insurance company’s collision coverage pays for your vehicle repair or total loss, then it can pursue recovery from the at-fault party’s insurance company and will also seek recovery of your deductible to pass along to you.