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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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