What Is Your Car Accident Injury Claim Worth?

The best way to determine how much your injury claim is worth when you are injured in a car accident is to look at how an insurance company would value your claim. An insurance carrier will first look to the types and amounts of damages suffered and then to percentage of fault.

Types of Damages You May Recover

The types of damages an insurance company will typically pay for include the following:

Medical Expenses: This includes medical expenses incurred to treat an injury, such as doctor’s visits; hospital expenses; emergency room expenses; fees for chiropractic care; physical therapy; and any type of medical devices that may be needed for your recovery, such as neck braces or crutches. These expenses are recoverable if they result from your injury. The cost of a medical examination done for the purposes of litigation is generally not recoverable. If you are able to guesstimate how much your overall medical treatment will cost, you and your attorney may well be able to ballpark how much your entire claim is worth. Medical expenses are typically used as a benchmark for determining the reasonableness of damage awards.

Future Medical Expenses: These are recoverable if the injured party can show that he or she is likely to need continued medical care as a result of the accident or injury. This amount may be determined by the advice and opinions of your doctors and/or other medical specialists seen for treatment.

Pain and Suffering: Pain and suffering damages may be granted for physical pain resulting from an accident or injury. A jury will look to the nature of the injury, the severity of the pain, and how long the plaintiff is likely to be in pain to determine the damage amount to be awarded.

Mental Anguish: Recovery for any type of mental or emotional distress suffered as a result of an accident or injury. This could include apprehension, fright, anxiety, nervousness, worry, loss of dignity, humiliation, grief, shock, and/or embarrassment. If the injured party has been disfigured by the accident/incident, mental suffering is recoverable for this type of emotional injury.

Lost Wages: You may recover the amount of money you would have earned between the time of the injury to the time of a judgment or settlement had you not been injured. If you were unemployed at the time of injury, you may still recover lost wages if you can effectively show what you could have earned during that same period.

Loss of Earning Capacity: You may recover damages for lost earning capacity if you can show that your ability to earn money in the future has been impaired. Past earnings will be used to determine an appropriate damage award, but a jury will likely focus on what might have been earned had the accident or injury not occurred.

Loss of Consortium: This relates to the loss of the benefits of married life when one spouse is injured. The uninjured spouse makes the claim and only has a chance of recovering if the injured spouse succeeds in recovering damages. Sometimes, however, the injured makes the claim as well. Married life benefits, the loss of which recovery is based, include companionship, affection, comfort, solace, help, and sexual relations. When determining the value of the loss, a jury will look to the stability of the marriage, the couple’s individual life expectancies, how much care and companionship were given to the uninjured spouse, and the degree to which the above-mentioned benefits were lost.

Property Damage: Recovery for the value of property that was damaged.

Amount of Damages You May Recover

An insurance company typically looks first to how much money has been spent and/or lost by the injured person when determining recovery. You may expect to recover any money spent or lost as a result of your injury. There are damages, however, that are harder to place a dollar value on. This includes pain and suffering or mental anguish. An insurance company may use a formula to ascertain what an appropriate damage amount might be for these types of claims.

The formula might work like this: First, the insurance company’s adjuster adds up the total amount of medical expenses relating to the injury. These damages are referred to as “medical special damages,” or “specials.” This base amount is then used to calculate the “general damages,” such as damages for pain and suffering, emotional damages, or other non-monetary losses.

Next, if the injuries are relatively minor, the adjuster will at most double the amount of special damages. If the injuries are more serious or painful, the adjuster may multiply specials by up to 5. In extreme cases, the adjuster may even multiply by up to 10.

After the adjuster adds on damages for lost income, an amount from which to begin negotiations is then ready to present.

How Fault Affects Your Recovery

Beyond the damages suffered, the degree of fault is probably the most important factor in determining how much you may finally recover for your injury. In most cases, both you and the insurance company will know (by the circumstances surrounding the accident) the level of fault for both parties. Was the other party completely at fault? Mostly at fault? Or only a little at fault? An adjuster will reduce your recovery amount by your percentage of comparative fault. If you were only 10% at fault, your damages total will be reduced by 10%. Your recovery will not be reduced by any amount if the accident was clearly someone else’s fault.

Fault and No-Fault Car Accidents: Who Pays the Bills?

Determining fault in a car accident is generally determined by the state in which the accident occurred. State laws vary significantly, so it is important to contact an experienced lawyer to determine whether the state has a fault or no-fault based system.

Fault states. Most states have adopted a fault-based, or “tort liability,” system of auto insurance. In a fault-based system, insurance companies pay according to each party’s degree of fault. If you and your insurer don’t see eye-to-eye on your claim, you may have to file suit for uncompensated economic damages such as lost wages and medical expenses and non-economic damages such as pain and suffering.

No-Fault States: Because the tort (lawsuit) system has led to long and costly court battles over who was at fault and to what degree, policymakers in many states decided to change from a fault-based system to some form of a no-fault system.

Under no-fault automobile insurance laws, the good driver does not have to prove that the crash was somebody else’s fault before getting his money. His insurance company picks up medical bills, rehabilitation costs and lost wages up to the amount he purchased. The tradeoff is the injured person cannot sue the other driver for pain and suffering, emotional distress and inconvenience. (If you live in a no-fault state, the no-fault portion of your auto insurance policy is usually called PIP or Personal Injury Protection.)

At present, there are 12 states that have no fault insurance:

No-Fault States:
Florida
Hawaii
Kansas
Kentucky
Massachusetts
Michigan
Minnesota
New Jersey
New York
North Dakota
Pennsylvania
Utah

When it comes to physical damage to your car or its contents, unlike compensation for bodily injury claims, insurance claims are still based on fault. Those claims are handled in the same way as those in a state with a fault law: by filing a lawsuit against the bad driver or looking to your own collision insurance.

Lawsuits, however, are permitted for injuries meeting a certain threshold, the definition of which varies considerably among the no-fault PIP states. An injured person can sue if the claim exceeds either a monetary or verbal (descriptive) threshold. In monetary threshold states (see below), medical expenses must be over a certain dollar amount. In verbal (descriptive) threshold PIP states (see below), injuries must be relatively “severe” (significant loss of use of body part, disfigurement, permanent disability, bone fracture) or expressed in terms of length of disability (full disability over 180 days). Some states have both, in which case an injured person can file a liability claim if he meets either one.

Because of the different hybrids in the PIP packaging, whether you can file an injury liability claim really will depend on the specifics of your state’s no-fault automobile law. Your best first step is to contact a car accident attorney to discuss how the relevant state law looks at fault and how that law affects your right to recover damages.

States with Add-On Coverage: To complicate matters, some states have “add-on” no-fault automobile insurance laws. “Add on” allows the driver to purchase personal injury protection as an optional coverage. The plan pays benefits to the injured without regard to who caused the accident, but the driver can sue (and be sued) for accident-related injuries and pain and suffering. The following are “add-on” states:

Arkansas
Delaware
D.C.
Maryland

THRESHOLDS: As stated above, no-fault car insurance limits your ability to sue another driver, except under defined thresholds. The threshold–which varies widely from state to state–may be expressed in a verbal description of the seriousness of the injury or a specific dollar value. If you meet the threshold requirements, you may sue to recover damages for pain and suffering.

States with Monetary Thresholds: In the following 7 states, the injured person’s medical expenses must exceed a dollar threshold before taking their injury liability claim to court:

Hawaii
Kansas
Kentucky
Massachusetts
Minnesota
North Dakota
Utah

States with Serious Injury Thresholds: In the following states, you can file a liability claim if you are at least relatively seriously hurt. The criteria of seriousness can be expressed in terms of a written description (e.g. permanent disfigurement, scarring, or fractured bones) or expressed in terms of length of disability (e.g. disability for more than 60 days).

Injuries that qualify as serious are defined by each state’s law. The states that use severity as a threshold are:

Florida
Michigan
New Jersey
New York

Choice States: In these 3 states, the driver chooses to have a policy based on no-fault or the tort-based system where the policyholder retains litigation rights for accident compensation.

Kentucky
New Jersey
Pennsylvania

Resources:

What You Can Expect to Recover for Property Damage in Auto Accident Cases

In the car insurance world, property damage is defined as damage to your vehicle (car, truck, SUV, etc.). The types of coverage that will pay for damage to your vehicle include collision, comprehensive, and sometimes, depending on the company, uninsured/underinsured motorist.

What You Can Recover

When your car is damaged in an automobile accident and you have coverage, your insurance company will either pay for repairs or “total” your vehicle. When an insurance company totals a vehicle, the vehicle is considered a complete loss and the insured is paid cash value for the vehicle. The actual cash value (ACV) is the cost to replace the vehicle with a vehicle that is of like kind and quality, etc., subtracting an amount that accounts for the totaled vehicle’s depreciation (age and wear and tear).

While it may seem like your car would have to be a complete wreck, a smoking heap, to be deemed totaled, in fact, this determination is made more on the basis of the cost of repair and the car’s worth. A car will be considered totaled if the repair costs exceed a certain percentage of the car’s worth. The percentage will differ from company to company, but usually ranges from 51% to 90%.

What To Do If You Disagree That Your Car is Totaled

Once your car is deemed totaled and you are paid actual cash value for it, your car is taken to a salvage yard where it is auctioned off. Then it is usually chopped up for parts. If you love your car, actual cash value may not seem like an equitable deal to you. When you sign a contract with your insurer, it is agreed between the two of you that the insurer will not have to pay out more than the car is actually worth. But the insurer also agrees to make you whole by placing you in the same spot (relatively speaking) as you would have been without the accident.

If you really want to keep your car, you can take the actual cash value from the insurance company, minus deductibles (in your policy) and minus what the insurer would have gotten at the salvage yard. You can then keep your car and make the repairs yourself. If you decide on this route, let the claims adjuster know right away. Once the car has gone to auction, it is much harder to get it back.

Personal Injury Auto Accident Checklist: Document Your Pain and Suffering Claim

Personal Injury Auto Accident Checklist: Document Your Pain and Suffering Claim

It’s very difficult to keep a cool head after an auto accident. Gathering evidence, talking to witnesses on the scene, taking photographs and taking down important information is the last thing you want to deal with following a jarring and perhaps traumatic event. However, if you want to make sure you are covered, and ultimately compensated, for all of the damage done, you will need to keep track of the facts, the paperwork, and the people involved.

Following is a checklist of information you will need to help support the duration and depth of your personal injury/pain and suffering claim. You can use this checklist to organize your information, information you will ultimately use to discuss your claim with an insurance company or to hand over to an attorney.

The Accident

Driver information: Obtain and exchange information with all other drivers such as name, license number, tag number, insurance company name, policy number.

Photographs: Take photographs of your injuries, the damage to all vehicles and of the scene of the accident in general.

Police report: Get a copy of the accident report if police responded.

Witnesses. Keep a record of all names, addresses, phone numbers and email addresses.

After the Accident

Medical expenses. Log all office visits, prescriptions, over-the-counter medications, laboratory services, physical therapy, hospital visits, treatments, medical documents, and x-rays, including names, dates of visits, amount charged and reasons for seeing the medical providers.

Lost work time: Keep a log of all time taken off from work as a result of the accident, including time off for medical treatments and/or the inability to function properly at work due to your injuries. Get a letter from your employer verifying pay and lost time.

Lost school time. Document all lost school time and/or inability to continue with school work as you did before the accident.

Photographs: Continue to take photographs of your injuries at different times after the accident. Write the date on the back of the photo.

Witnesses. Contact them for a written statement before too much time lapses.

Pain, discomfort, emotional distress, fatigue, tenderness, inconvenience, etc.: Keep a daily log of your thoughts, feelings and experiences on a day-to-day basis, documenting how the injuries have interfered with your daily life and relationships.

Car repair estimates and/or bills: Car repair estimates are necessary to get your car fixed. However, estimates provided by your insurance company can sometimes be lower than you might have expected. If unsatisfied with an initial estimate, take the automobile to a certified mechanic for another estimate. Be sure to save all of the bills and repair paper work associated with the repair.

Out of pocket expenses: Keep records/receipts of everything you’ve paid for out-of-pocket relating to or as a result of injuries suffered in the accident. For example, heating pads, ace bandages, child-care expenses, cancellation of a vacation trip or event, clothing, taxi service or rental car, etc.

What You Need to Know:

Seek medical attention immediately after an accident!

Do not admit fault immediately after the accident.

Diligently follow through with all medical treatments.

Do not answer any questions from the other side’s insurance company or attorney or sign any forms without approval from your attorney.

Do not settle your case until all necessary medical expenses, present and future, are known.

Keep copies of everything (all documents, bills, medical records, etc.).

Resources:

Free Advice Auto Insurance Center: Articles, FAQs, free quotes and research links.

Free Advice Auto Accident Law: Articles, state-specific auto accident and DUI information, and FAQs about auto accidents and the law.

Anatomy of an Auto Accident Insurance Claim

An auto accident insurance claim always begins with an accident. If you are involved in a car accident, there are some very important things you should do at the accident site to the extent you can. At the first opportunity, you should report the accident with your insurance carrier and begin the process of filing a claim. After you have submitted your claim, a claims adjuster (someone who works for the insurance company and deals exclusively with claims) will either call, write or email you regarding your claim. He or she will then look at your policy to determine the types of coverage you have, deductibles, and any coverage limits that may affect your claim.

If your claim is simple (i.e., fault is not at issue, the damage was minimal, and little or no medical treatment was necessary), the adjuster may have you get an estimate for repairs and then send you a check. You will have to fill out some paperwork, but you may not have to meet with the adjuster in person. If your claim is more complicated (for example, liability is unclear, you do not have enough coverage in your policy, or you do not agree with your adjuster’s settlement offer), then the negotiation process will take longer.

Investigating Your Automobile Accident Claim

In relatively complicated injury accident claims, adjusters typically must do some investigation in order to adequately assess the insurance company’s liability. The adjuster will comb through your policy and possibly contact witnesses to the accident, the other party to the accident, look at the police report if there is one, take photographs of the damages and scene of the accident and generally investigate your medical expenses by sending out requests to your medical providers for information regarding your treatment. If you are seeking to have medical bills covered, the adjuster will send you a medical authorization form for the release of your medical records.

The Settlement Offer

Once the adjuster has investigated your claim and looked at your policy, he or she will typically send you a settlement offer. The settlement offer will tell you what the insurance company is willing to pay on your claim. It could be all, it could be part, it could be none. This opening offer is typically on the low side. After all, the adjuster’s job is to save his or her employer money. But the adjuster also wants to close a case and thus is typically allowed a settlement range that offers room for negotiation. See When the Adjuster’s Settlement Offer is Too Low.

The Demand Letter

If you are confident about how much you think your claim is worth, you can preempt the adjuster’s settlement offer with your own settlement proposal (demand letter). Your demand letter would outline fault (if an issue), damages and ask for a certain amount to settle your claim.

So, should you make a demand first, or wait for the offer? See Making a Demand or Waiting for a Car Insurance Offer and Settling Your Car Insurance Claim: How to Write a Demand Letter.

Negotiating with the Claims Adjuster

If you’ve already received an opening offer from the adjuster, keep in mind that opening offers for settlement are almost always on the low side. Whether or not you think the offer is reasonable, read When the Adjuster’s Settlement Offer is Too Low for more information on how to evaluate that opening offer. Then, unless you’re willing to go with that opening offer (knowing that it’s too low) without an argument, you will ultimately need to negotiate with the adjuster for a higher settlement. See Negotiating Your Car Insurance Settlement.

If Your Auto Accident Claim is Denied

If your claim is denied in whole or in part, there could be many legitimate and reasonable reasons. Most have to do with limits in your coverage. You can check the denial letter against your policy to see if the denial seems legitimate or not. If you still think your claim was unfairly denied, read When Your Car Insurance Claim is Denied for more on what you can do next. But whatever you decide to do, don’t wait too long to do it. If you sit on your claim for too long, you may lose the right to sue in court to get your recovery. Each state has a statute of limitations (a time limit for filing a lawsuit in court). In most states, the statute of limitations for personal injury claims is 2 or 3 years, but could be shorter or longer. An attorney will be able to advise you.

Find an auto accident lawyer.

Car Insurance and Auto Accidents: Are You Covered?

Insurance companies offer a variety of auto insurance packages, all providing varying levels of coverage. Most states require motorists have some minimal amount of insurance. Keep in mind, however, that purchasing just the minimum may be risky as minimal coverage may not be adequate in the event of a serious bodily injury accident.

Bare Bones Basic: Liability Insurance

Liability insurance is required by law in almost all states. It will pay for the property damage and personal injury expenses of others when you are at fault for an accident, up to the limits specified in your own particular policy. This coverage includes your legal bills. The bodily injury portion of the coverage includes medical expenses and lost wages. The property damage portion covers repair or replacement of items damaged as a result of the accident, your car not included (see Collision, below). The vast majority of states require motorists have at least liability insurance, and most require a minimum amount. Check out your state’s insurance department to find out your state’s minimum.

How About Me? Collision Insurance

Regardless of fault, collision insurance will cover damage to your vehicle, subject to any deductible. Period. Your insurance company will either pay for repairs or “total” your car (declare your car a total loss). (Alternatively, you can file a claim with the other person’s insurance company for the car’s repair and sidestep the deductible on your own policy.) If the insurance company totals your car, you will most likely get the actual cash value for the car, as opposed to the replacement cost. The replacement cost is the cost of replacing or repairing your vehicle with materials that are of similar type and quality without deducting for depreciation. Depreciation is the decrease in value of your vehicle due to age or wear and tear. Actual cash value is usually figured as the replacement cost minus the depreciation. Collision coverage can be expensive. You can consider increasing your deductible to lower your premium.

Beyond Car Accidents: Comprehensive Insurance

Comprehensive covers damage that occurs as a result of circumstances other than vehicle accidents. Comprehensive will cover loss due to theft, fire, vandalism, and natural disasters. There is usually a deductible and the insurance company will not likely pay more than the Kelley Blue Book value if your car is wrecked. Of course, if you have a beater for a car and the comprehensive coverage costs more than what the car is actually worth, then don’t even bother buying it.

Medical, PIP and No-Fault

Medical payments coverage pays for your medical expenses and those of your passenger in the event of an accident, regardless of who was at fault. This coverage applies when you are driving your vehicle or someone else’s vehicle with their permission. You and your family members are covered if you are injured as pedestrians. Be aware that some insurance policies obligate you to repay any benefits received later from the other driver or car owner. Do you need medical payments coverage when you are also covered by your health plan? Click here for an article on that subject. Personal injury protection (PIP) and No-Fault coverages are typically expanded forms of medical payment protection. Some states require these, in others it is optional. Some features include coverage for lost wages and child care.

Uninsured/Underinsured Coverage

Uninsured/Underinsured coverage pays for your injuries and possibly property damage when you are involved in an accident with someone who is at fault and has no liability insurance, or just has the bare bones limits of liability insurance. Some states require motorists to have this coverage.

Supplemental Insurance

These are essentially add-ons to your basic insurance policy. You can add on coverage for rentals, repairs or towing which could save you money in the long run. Check with your state’s insurance department to find out what types of coverage are required in your state.

Personal Injury Auto Accident Checklist: Document Your Pain and Suffering Claim

It’s very difficult to keep a cool head after an auto accident. Gathering evidence, talking to witnesses on the scene, taking photographs and taking down important information is the last thing you want to deal with following a jarring and perhaps traumatic event. However, if you want to make sure you are covered, and ultimately compensated, for all of the damage done, you will need to keep track of the facts, the paperwork, and the people involved.

Following is a checklist of information you will need to help support the duration and depth of your personal injury/pain and suffering claim. You can use this checklist to organize your information, information you will ultimately use to discuss your claim with an insurance company or to hand over to an attorney.

The Accident

Driver information: Obtain and exchange information with all other drivers such as name, license number, tag number, insurance company name, policy number.

Photographs: Take photographs of your injuries, the damage to all vehicles and of the scene of the accident in general.

Police report: Get a copy of the accident report if police responded.

Witnesses. Keep a record of all names, addresses, phone numbers and email addresses.

After the Accident

Medical expenses. Log all office visits, prescriptions, over-the-counter medications, laboratory services, physical therapy, hospital visits, treatments, medical documents, and x-rays, including names, dates of visits, amount charged and reasons for seeing the medical providers.

Lost work time: Keep a log of all time taken off from work as a result of the accident, including time off for medical treatments and/or the inability to function properly at work due to your injuries. Get a letter from your employer verifying pay and lost time.

Lost school time. Document all lost school time and/or inability to continue with school work as you did before the accident.

Photographs: Continue to take photographs of your injuries at different times after the accident. Write the date on the back of the photo.

Witnesses. Contact them for a written statement before too much time lapses.

Pain, discomfort, emotional distress, fatigue, tenderness, inconvenience, etc.: Keep a daily log of your thoughts, feelings and experiences on a day-to-day basis, documenting how the injuries have interfered with your daily life and relationships.

Car repair estimates and/or bills: Car repair estimates are necessary to get your car fixed. However, estimates provided by your insurance company can sometimes be lower than you might have expected. If unsatisfied with an initial estimate, take the automobile to a certified mechanic for another estimate. Be sure to save all of the bills and repair paper work associated with the repair.

Out of pocket expenses: Keep records/receipts of everything you’ve paid for out-of-pocket relating to or as a result of injuries suffered in the accident. For example, heating pads, ace bandages, child-care expenses, cancellation of a vacation trip or event, clothing, taxi service or rental car, etc.

What You Need to Know:

Seek medical attention immediately after an accident!

Do not admit fault immediately after the accident.

Diligently follow through with all medical treatments.

Do not answer any questions from the other side’s insurance company or attorney or sign any forms without approval from your attorney.

Do not settle your case until all necessary medical expenses, present and future, are known.

Keep copies of everything (all documents, bills, medical records, etc.).

Fault and No-Fault Car Accidents: Who Pays the Bills?

Determining fault in a car accident is generally determined by the state in which the accident occurred. State laws vary significantly, so it is important to contact an experienced lawyer to determine whether the state has a fault or no-fault based system.

Fault states. Most states have adopted a fault-based, or “tort liability,” system of auto insurance. In a fault-based system, insurance companies pay according to each party’s degree of fault. If you and your insurer don’t see eye-to-eye on your claim, you may have to file suit for uncompensated economic damages such as lost wages and medical expenses and non-economic damages such as pain and suffering.

No-Fault States: Because the tort (lawsuit) system has led to long and costly court battles over who was at fault and to what degree, policymakers in many states decided to change from a fault-based system to some form of a no-fault system.

Under no-fault automobile insurance laws, the good driver does not have to prove that the crash was somebody else’s fault before getting his money. His insurance company picks up medical bills, rehabilitation costs and lost wages up to the amount he purchased. The tradeoff is the injured person cannot sue the other driver for pain and suffering, emotional distress and inconvenience. (If you live in a no-fault state, the no-fault portion of your auto insurance policy is usually called PIP or Personal Injury Protection.)

At present, there are 12 states that have no fault insurance:

No-Fault States:
Florida
Hawaii
Kansas
Kentucky
Massachusetts
Michigan
Minnesota
New Jersey
New York
North Dakota
Pennsylvania
Utah

When it comes to physical damage to your car or its contents, unlike compensation for bodily injury claims, insurance claims are still based on fault. Those claims are handled in the same way as those in a state with a fault law: by filing a lawsuit against the bad driver or looking to your own collision insurance.

Lawsuits, however, are permitted for injuries meeting a certain threshold, the definition of which varies considerably among the no-fault PIP states. An injured person can sue if the claim exceeds either a monetary or verbal (descriptive) threshold. In monetary threshold states (see below), medical expenses must be over a certain dollar amount. In verbal (descriptive) threshold PIP states (see below), injuries must be relatively “severe” (significant loss of use of body part, disfigurement, permanent disability, bone fracture) or expressed in terms of length of disability (full disability over 180 days). Some states have both, in which case an injured person can file a liability claim if he meets either one.

Because of the different hybrids in the PIP packaging, whether you can file an injury liability claim really will depend on the specifics of your state’s no-fault automobile law. Your best first step is to contact a car accident attorney to discuss how the relevant state law looks at fault and how that law affects your right to recover damages.

States with Add-On Coverage: To complicate matters, some states have “add-on” no-fault automobile insurance laws. “Add on” allows the driver to purchase personal injury protection as an optional coverage. The plan pays benefits to the injured without regard to who caused the accident, but the driver can sue (and be sued) for accident-related injuries and pain and suffering. The following are “add-on” states:

Arkansas
Delaware
D.C.
Maryland

THRESHOLDS: As stated above, no-fault car insurance limits your ability to sue another driver, except under defined thresholds. The threshold–which varies widely from state to state–may be expressed in a verbal description of the seriousness of the injury or a specific dollar value. If you meet the threshold requirements, you may sue to recover damages for pain and suffering.

States with Monetary Thresholds: In the following 7 states, the injured person’s medical expenses must exceed a dollar threshold before taking their injury liability claim to court:

Hawaii
Kansas
Kentucky
Massachusetts
Minnesota
North Dakota
Utah

States with Serious Injury Thresholds: In the following states, you can file a liability claim if you are at least relatively seriously hurt. The criteria of seriousness can be expressed in terms of a written description (e.g. permanent disfigurement, scarring, or fractured bones) or expressed in terms of length of disability (e.g. disability for more than 60 days).

Injuries that qualify as serious are defined by each state’s law. The states that use severity as a threshold are:

Florida
Michigan
New Jersey
New York

Choice States: In these 3 states, the driver chooses to have a policy based on no-fault or the tort-based system where the policyholder retains litigation rights for accident compensation.

Kentucky
New Jersey
Pennsylvania

Resources:

Free Advice Auto Insurance Center: Articles, FAQs, free quotes and research links.

Car Accidents - Who is at Fault?

Fault is one of the biggest, if not THE most critical element, in any car accident claim. The person at fault is the person whose negligence caused the accident, and that is the person who typically must pay for the damage caused by his or her negligence. If the circumstances surrounding your accident make it clear that one person was clearly at fault, then read no further! One of the related articles listed below should be your next stop. If, however, liability is not entirely clear or if there is shared fault, then fault is apportioned between the persons determined by the specifics of the law in your state (see below) on comparative or contributory negligence. When liability is shared in an auto accident, it is the insurer’s turn to determine the relative percentages of fault of the parties involved.

What is Comparative or Contributory Negligence?

Historically, if two people were involved in an accident and the injured party was even the slightest bit at fault, he or she would not be entitled to recover anything for his/her injuries or losses. This way of determining damages is known in legal circles as pure contributory negligence. For example, say Luther and Martin were involved in an accident. Luther hit Martin’s car while making a left turn onto a 2-lane street at night. Luther didn’t see Martin’s car because even though it was night time (and a dark one at that), Martin was not driving with his headlights on. Under a pure contributory negligence theory, Martin could not recover damages for his injuries because he was partially at fault for the accident. Sound pretty harsh? Actually, some states still follow this rule (Alabama, District of Columbia, Maryland, North Carolina and Virginia).

But most states now use some proportional form of comparative negligence that allows an injured party to recover some damages for his or her injuries, even if he or she was partially at fault. There are currently three variations: Pure comparative fault; proportional comparative fault at 51%; proportional comparative fault at 50%.

Pure Comparative Fault

In states that have adopted pure comparative fault as a measure of damages, if an injured person is partially at fault for causing his own injuries, his damages are reduced by the percentage of his fault. For example, say Michelle was injured in a car accident for which she was 80% at fault. Damages for her injury amount to $10,000. Michelle will be entitled to recover $2,000 for her injuries, that is, $10,000 less 80% or $8,000 for her percentage of fault. States: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota and Washington.

Proportional Comparative Fault at 51%

The states that have adopted proportional comparative fault bar recovery if you are more than 51% at fault for the accident. In other words, you cannot file a liability claim and lawsuit against the other driver’s negligence if you were more than 51% at fault. For example, Dennis hit Teri’s car while driving in excess of 25 miles per hour over the speed limit while Teri was attempting to cross the road. Even though Teri was partially at fault for not waiting until the road was completely clear before crossing, the insurance company allocated fault to Dennis at 60% due to his excessive speed. Even though Dennis suffered a broken arm from the accident, he is not entitled to recover for his injury due to the fact that he was more than 51% at fault for the accident. States: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming.

Proportional Comparative Fault at 50%

In states that have adopted the 50% bar standard in resolving auto accident claims, an injured person that is less than 50% at fault for the accident is entitled to compensation. If the injured party is 50% or more at fault, he or she is not entitled to recovery for the injury. For example, Richard and Susan accidentally hit each others’ cars while backing out of their parking spaces at exactly the same time. Both were not looking carefully enough when they backed up, and so both were deemed equally at fault for the accident. Neither one will be entitled to damages since both were 50% at fault for the accident. States: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia.

How is Percentage of Fault Determined?

After an accident, it is the job of the insurance company claims adjuster to assign the relative degrees of fault based on the circumstances surrounding the accident. There is no secret mathematical formula for determining percentages of fault in accident injuries. You and the claims adjuster will negotiate and come to some agreement as to what, if any, your allocated fault is. Here is where an experienced personal injury attorney can come in handy. He or she will know how to assess the accident and advocate for the lowest percentage of fault on your behalf. If you and the insurance adjuster reach an impasse, a court of law is ultimately your next step to resolve the issue of fault.

Fault and Car Insurance

Insurance companies often offer extra coverage/protection (for extra money) to help pay for property damage and/or personal injury and medical expenses regardless of fault. So if you are injured in an accident that was mostly your fault and you are not entitled by law to compensation from the other person’s insurance, but you have extra coverage under your own policy, your insurance company will pay for your injuries. This extra coverage is called PIP (personal injury protection) or No Fault coverage. Under this scenario, you would file a liability claim with your own insurance carrier for medical bills and lost income, up to a specified maximum, without any discussion or disagreement about the circumstances of the accident and who was at fault. Whether you can file for further expenses against the other person who was at fault in the accident depends on your state’s laws. In many states, Uninsured/Underinsured coverage is required. This provides coverage for damages resulting from an accident with someone who either has no insurance or does not have enough insurance to cover your expenses. It also protects you if the other person flees the scene after the accident or is a driver of a stolen car.

Beyond the damages suffered, the degree of fault is probably the most important factor in determining how much you may finally recover for your accident injury. In most cases, both you and the insurance company will know (by the circumstances surrounding the accident) the level of fault for both parties. Was the other party completely at fault? Mostly at fault? Or only a little at fault? If you are in a comparative fault state, an adjuster will reduce your recovery amount by your percentage of comparative fault. If you were only 10% at fault, your damages total will be reduced by 10%. Your recovery will not be reduced by any amount if the accident was clearly someone else’s fault.

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Study Shows Slip & Fall Accident Lawsuits Increase As US Population Ages

Slip and falls are one of the most common types of accidents around and you would think that their occurrence would be fairly steady. However, according to a new study published by insurer CNA, slip and fall accident lawsuits are expected to increase over the next few years as the age of the U.S. baby-boomer population increases.

CNA study

According to the CNA study, seniors are more likely to experience a slip and fall accident and their injuries tend to be more significant. The study’s authors estimate that over one million people injure themselves in slip and fall accidents, that 16,000 people die from a slip and fall accidents every year and have identified the following five major causes of slip and fall accidents:

1. Lack of slip resistance on walking surfaces
2. Poor walking surface conditions
3. Poor visibility
4. Lack of, or poor condition of, handrails or guardrails
5. Poor accessibility (to the area one is trying to reach)

To see the study, go to CNA’s website at www.cna.com/.

The value of a slip & fall accident may be larger than you think…

If you think that a “simple” slip and fall accident doesn’t mean you can collect substantial damage awards, think again. While every case is different, these recent examples of slip and fall verdicts and settlements show that substantial damage awards do exist:

• $18M: A Pennsylvania medical student settled his slip and fall case for $18 million in the summer of 2008 after an energy company failed to recover a manhole and the man fell 18 feet – causing him to suffer a severe spinal injury. His Pennsylvania personal injury attorney was able to prove that the company had knowledge that the manhole was consistently being uncovered by the homeless to go underground in winter months for over 10 years, but did nothing to fix the problem.
• $12.2M: A Virginia woman was awarded $12.2 million in late 2007 after she slipped on a puddle caused by a leaking awning at a convenience store. The accident left the woman with extensive and permanent brain injuries from the way her head snapped back when she fell. Her Virginia personal injury lawyer was able to prove that the store had known about the leaky awning, but failed to fix it or warn customers.
• $2.4M: The family of an elderly Delaware man was awarded $2.4 million in the summer of 2008 after the man slipped and fell in a nursing home and broke his hip. The accident eventually led to his death. His Delaware personal injury lawyer was able to prove that the facility was negligent in its care of the man.

If you’ve been injured in a slip and fall accident, contact an experienced personal injury attorney to discuss your situation – even if it’s just to evaluate your options. Most firms offer free initial consultations, so finding out if you might be entitled to money damages doesn’t cost you a thing.

How a Wrongful Death Lawyer Can Help You

If a family member or someone who supports you has been killed because of negligence, product liability, or violence, you might be able to bring a wrongful death action to recover damages for lost care, support, benefits, inheritance, and more. Because every state law is different, it’s very important to know what your state’s law on wrongful death is. Applying the law can be complicated, and the best way to be sure you are protecting your rights is to consult with a wrongful death lawyer who is experienced in your state.

Your experienced wrongful death attorney can tell you if you still have time to file a wrongful death lawsuit, if you are eligible to bring such a suit, whether there is enough evidence that the defendant caused the wrongful death, what kind of damages might be recoverable, and the best strategy to settle or litigate your case. If you have a good case, your attorney can help obtain information you need to win the case, such as medical evidence, police reports, physical evidence of an accident or violence, and expert evidence on many subjects, including faulty products, drug side effects, and medical malpractice. An attorney can interview and screen witnesses on your behalf.

Your attorney may make phone calls and write letters for you and negotiate a settlement. When you are up against professional negotiators, as you always are if an insurance company is involved in your case, you will want a professional negotiator on your side as well. If your case goes to court, an experienced wrongful death lawyer can deal with all the procedural issues and evidentiary rules involved in filing pleadings, obtaining evidence through discovery, and appearing in court.

If you decide to represent yourself, a wrongful death attorney can advise and coach you through the process. He or she can help you evaluate your case, prepare documents, find evidence, and go through settlement negotiations. If you find the case is more than you can handle, your attorney coach can take over the case and represent you.

Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.

• For more information about wrongful death, see Overview: What is Wrongful Death?
• For more information about who may file a wrongful death lawsuit, see Who May Sue for Wrongful Death?
• To find out more about damages in a wrongful death lawsuit, see Damages in a Wrongful Death Lawsuit.
• For more information about the statute of limitations for bringing a wrongful death action, see Time Limits for Filing a Wrongful Death Claim.
• If you would like to learn more about wrongful death lawsuits, see Wrongful Death Lawsuits: What They Are and How They Work.
• For more information about medical privacy concerns in wrongful death cases, see Wrongful Death and the Physician-Patient Privilege.

Wrongful Death and the Physician-Patient Privilege

All states have laws about what is called the physician-patient privilege. This privilege includes a patient’s right to medical privacy and the right to prevent a physician from revealing the contents of medical files without the patient’s permission. This privilege is frequently an issue in wrongful death lawsuits, where wrongful death lawyers need access to the medical information to prepare for a case. Because the plaintiff (the person suing) in the wrongful death lawsuit must prove that the defendant(s) caused the wrongful death, medical evidence is crucial.

Usually, a physician is not allowed to release information without the permission of the patient or deceased person. There are, however, exceptions to this rule. In some states, the deceased’s personal representative, surviving spouse, or next of kin has the right to waive (release) the privilege and have medical information released once the injured person has died.

In some states, the files may only be released to a hospital or a doctor; they can’t be released directly to a wrongful death attorney. There is also the question of whether the files can be obtained before a wrongful death lawsuit has been filed. There is some dispute about whether the files should be released, but the plaintiff’s attorney can usually obtain the files with his or her client’s permission if the files are sought in contemplation of filing a wrongful death lawsuit.

If the wrongful death action began as a personal injury action during the injured person’s lifetime, and the plaintiff later died of the injuries, the patient’s waiver of the physician-patient privilege for purposes of the personal injury action will also be a waiver of the privilege for the subsequent wrongful death lawsuit by the patient’s family. For example, if a woman is injured in a car accident and she files a lawsuit to recover damages for her injuries, from which she later dies, her family’s wrongful death lawyer can have access to the medical information she authorized her physician to release for her personal injury claim.

Check out the following articles for more information about wrongful death, filing a wrongful death lawsuit and finding an experienced wrongful death attorney.

• For more information about wrongful death, see Overview: What is Wrongful Death?
• For more information about who may file a wrongful death lawsuit, see Who May Sue for Wrongful Death?
• To find out more about damages in a wrongful death lawsuit, see Damages in a Wrongful Death Lawsuit.
• For more information about the statute of limitations for bringing a wrongful death action, see Time Limits for Filing a Wrongful Death Claim.
• If you would like to learn more about wrongful death lawsuits, see Wrongful Death Lawsuits: What They Are and How They Work.
• To learn more about wrongful death attorneys and how to find one, see How a Wrongful Death Lawyer Can Help You.

Swimming Accidents: Drowning, Injuries and Liability

Every year the joys of summer are marred by tragedy when swimmers drown or are permanently injured in near-drowning accidents. It takes only five minutes and less than two inches of water for a small child to drown, and it may all happen silently. It can be over in the time it takes to answer the telephone. It has been estimated that as many as 350 children under the age of 5 drown in pools each year and another 2,600 are treated for near-drowning incidents.

There are other dangers too, especially of spinal injuries or paralysis from diving into too shallow water or injury from slips and falls. Cases involving swimming injuries on private or commercial property fall into three general categories, while claims against governmental entities are somewhat different.

Faulty Products

Poor Maintenance

Carelessness

Accidents on Government Land

Faulty Products

Some swimming-related injuries are caused by poorly designed or faulty products. In legal terms, a lawsuit based on this kind of injury is called a product liability case, and it can be brought against the manufacturer of the faulty product, a component manufacturer, or various parties involved in marketing the product. Faulty products can include things like a drain cover that catches a foot and causes a swimmer to drown, a pool cover with sharp edges that causes cuts or abrasions, a gas heater that explodes, or a sump pump that shorts and causes electrocution. Sometimes the design of the pool itself has been found faulty, especially when it is difficult to see where the pool is deep enough to dive or when the shallow and deep areas are not clearly marked on the pool.

Products used in and around the pool can also cause drowning or serious injury. Water slides, for example, can cause injuries if they have attachments where people can become entangled or have weak areas that may give way and result in falls. Flotation devices for babies and small children sometimes have faulty fasteners or weak areas that cause children to fall into the water. These should never be used without an adult standing next to the child. Children are sometimes impaled on sharp diving toys or injured by toys like water guns if pieces of the toy can become projectiles.

Poor Maintenance

Injuries in or around swimming pools often happen because the owner or operator of the property hasn’t maintained the property or equipment in a reasonably safe condition. In legal terms, liability for this kind of carelessness is called premises liability. Both the owner of the land and the operator or possessor of the land is sometimes named as a defendant in this kind of case. Interpretations of what is a reasonably safe condition differ from state to state, and some states have different rules about the duty of the landowner to protect people who have been invited; people who haven’t been invited, but are there legally (i.e. a meter reader); and trespassers, who don’t have right to be on the property at all. Be sure to find out the specific interpretations used in your locality. The same standard is usually applied to both private homes and commercial areas.

Examples of situations that could result in liability because of poor maintenance include a poorly repaired area around the pool that causes someone to slip and fall, broken life-saving equipment that results in a drowning or serious injury, a loose ladder or stairs that cause a fall or a cut, an improperly maintained fence or pool cover that allows a young child to get into the pool and drown, or contamination in a pool that hasn’t been treated properly with chemicals that causes a serious illness.

Many states have laws—called recreational use laws—that exempt landowners from liability for accidental injuries if they open their land to the public for no charge. The duties of a landowner under these statutes differ from state to state. Some states include private swimming pools under these laws, and some don’t. If you’re a landowner, be sure you know what your state requires.

Carelessness

Many accidents in and around swimming pools and other swimming areas happen because the owner or possessor (tenant or management company) of the land has been careless and hasn’t taken enough care to protect the people swimming or otherwise using the area for recreation. The legal term for this carelessness is “negligence,” and this kind of case can be brought against the owner and or the possessor of the property. Accidents not caused by poor maintenance often involve a failure to properly supervise swimmers. In commercial facilities or places like public pools or camps where lifeguards are provided, the lifeguards must be on duty and attentive all the time that the pool is in use. Deaths and severe injuries have happened when lifeguards were lying down, reading, had their eyes closed, or were on a bathroom break.

Small children are the most frequent victims of drowning accidents, and the pool owner or operator, public or private, has a duty to protect them. This may involve: 1 Fencing to prevent small children from entering; 2 A gate with a latch too high for them to reach; 3 A cover when the pool isn’t in use; 4 Motion alarms to alert the owner that children are present. Some states, for example Arizona, California, and Oregon, require fencing around private pools to keep small children out. Be sure you know what your state requires.

Pool owners should have safety equipment like a shepherd’s hook and a ring buoy in good condition and quickly available. It would be a good idea to also have a first aid kit and a spinal board available, since diving accidents often cause spinal injuries.

Clear signs should be posted warning of all dangers, and it is a good idea to post and enforce prohibitions on diving, running, swimming while intoxicated, or swimming without supervision (for both adults and children). Pool owners should clearly inform visiting parents that children are not allowed to swim without adult supervision and that the parents are responsible for that supervision.

Owners of property with natural swimming areas like rivers, ponds, or lakes have a duty to remove hazards like broken glass or wood with old nails and to warn people about possible natural dangers like whirlpools, swift currents, or unclean water. State recreational use statutes may relieve them of some or all of this duty if they open the area to the public for free.

Accidents on Government Land

Different rules apply when you’re suing a local, state, or federal government entity as opposed to a private party. Governments generally have the same duty to maintain government-owned property in a safe condition or to avoid carelessness as private and commercial landowners. The difference is in the procedures for suing them and the amounts of money that can be collected for damages.

The federal government and all states have laws that set out how governments can be sued. The federal law is called the Federal Torts Claim Act (FTCA). These statutes often have special procedural requirements for lawsuits and may have different time deadlines than apply to other cases.

Under the FTCA the federal government is legally responsible for injuries in the same way private landowners would be in the location where the accident happened. So if you are injured on federal land because of government negligence, it would be the tort liability law of the state where the land is located that would govern your case (not federal law), but you would need to follow all the procedural requirements of the FTCA, such as when and where to file the lawsuit, and with what paperwork. Seek the advice of an attorney (see below) if you are suing a government entity.

State laws in this area differ widely. Some states apply recreation use statutes and hold that governments aren’t liable for injuries on land open to the public for free, while other states have decided that those laws don’t apply to governments. A few states have passed special laws that protect governments from liability on public lands. Some states also have limits on the amount of damages that can be collected for injuries on public land. You need to check both your state’s tort claims laws and its recreational use laws if you are injured on land owned by a state or a local government.

It’s good to keep in mind that it wouldn’t be possible to protect people from all the hazards in parks and natural areas or to warn them of every swimming hazard in rivers, lakes and reservoirs. Governments may only be liable for injuries if they operate an area for swimming and recreation. You should always be wary of swimming in unfamiliar waters and not assume that all hazards will be posted.

Swimming accidents can trigger a number of complex legal issues, such as product liability, negligence and premises liability. This coupled with the fact that injured parties only have a certain amount of time to sue (the state’s statute of limitations) or they lose their right to sue for their injuries, makes it important to seek the advice of an attorney if you believe you are entitled to compensation for medical bills, pain and suffering, and the like. If you are looking for an experienced injury attorney, you can find one at AttorneyPages.com. If you would like a free case evaluation from an experienced attorney, fill out the case evaluation form and an injury lawyer will contact you, no cost and no obligation.

Amusement Park Injuries: Legal Expert Says Statistics Aren’t Made Public

Amusement park rides at some of the nation’s largest theme parks seem to offer more thrills than ever before. Rides not only go faster, but often push the limits of G-force and maneuver in ways that are likely to make even make an astronaut’s stomach a bit queasy. The result in some cases is permanent injury or death – and one California lawyer believes that the industry doesn’t make that information public.

Personal injury lawsuits

According to news reports, a California personal injury attorney, has asked the amusement park industry to release statistical data on the number of brain related injuries suffered in the nation’s largest amusement parks. Attorney Barry Novack, who also has a PhD in engineering, has filed nearly a dozen lawsuits against various theme parks which allege that plaintiffs of all ages suffered serious injuries after riding amusement park attractions such as:

• Stroke. A 68-year old man suffered a stroke after riding the Tower of Terror at Disney MGM. That case is still ongoing.
• Brain hemorrhage. A 7-year old suffered a brain hemorrhage which caused temporary paralysis and permanent cognitive deficits after riding the Hammerhead Shark ride at Six Flags Amusement Park. That case is still ongoing.
• Death. A Connecticut boy died while on a boat ride at Playland in New York. His family and the park settled the wrongful death case for $1.25 million.

Negligence or assumption of the risk?

While amusement park owners often claim that riders assume the risk when they go on a ride, plaintiffs’ lawyers such as Novack say that amusement parks may be negligent for not posting clear warning signs or posting signs that don’t adequately warn park goers of the risks involved. They allege that the amusement park industry keeps records of serious accidents from the public and are petitioning courts to make that information public. If you’ve been injured by an amusement ride, contact an experienced personal injury attorney to discuss your situation and evaluate your options. You may be entitled to compensation for your injuries.

Motorcycle Accidents: Statute of Limitations

Each state has its own statute of limitations which restricts the length of time that may pass between the date of injury and the date by which your case must be filed. In some states, that statute is one year from the date of injury; in other states, it can be two or more years.

You must educate yourself as to the requirements in your own state. The simplest way to do that is to contact an attorney who handles motorcycle personal injury cases in the state where you live.

A general exception to a statute of limitations is when a minor was injured in an accident. In that situation, minors generally have until their 18th birthday, plus the statutory limit to file suit. So, the statute is "tolled", or put on hold until the minor is 18. For example, in California, the statutory limit is two years to file a personal injury lawsuit. Therefore, a 14-year old would have two years from the date on which he turns 18 to file suit, or six years total.

Personal Injury Auto Accident Checklist: Document Your Pain and Suffering Claim

It’s very difficult to keep a cool head after an auto accident. Gathering evidence, talking to witnesses on the scene, taking photographs and taking down important information is the last thing you want to deal with following a jarring and perhaps traumatic event. However, if you want to make sure you are covered, and ultimately compensated, for all of the damage done, you will need to keep track of the facts, the paperwork, and the people involved.

Following is a checklist of information you will need to help support the duration and depth of your personal injury/pain and suffering claim. You can use this checklist to organize your information, information you will ultimately use to discuss your claim with an insurance company or to hand over to an attorney.

The Accident

Driver information: Obtain and exchange information with all other drivers such as name, license number, tag number, insurance company name, policy number.

Photographs: Take photographs of your injuries, the damage to all vehicles and of the scene of the accident in general.

Police report: Get a copy of the accident report if police responded.

Witnesses. Keep a record of all names, addresses, phone numbers and email addresses.

After the Accident

Medical expenses. Log all office visits, prescriptions, over-the-counter medications, laboratory services, physical therapy, hospital visits, treatments, medical documents, and x-rays, including names, dates of visits, amount charged and reasons for seeing the medical providers.

Lost work time: Keep a log of all time taken off from work as a result of the accident, including time off for medical treatments and/or the inability to function properly at work due to your injuries. Get a letter from your employer verifying pay and lost time.

Lost school time. Document all lost school time and/or inability to continue with school work as you did before the accident.

Photographs: Continue to take photographs of your injuries at different times after the accident. Write the date on the back of the photo.

Witnesses. Contact them for a written statement before too much time lapses.

Pain, discomfort, emotional distress, fatigue, tenderness, inconvenience, etc.: Keep a daily log of your thoughts, feelings and experiences on a day-to-day basis, documenting how the injuries have interfered with your daily life and relationships.

Car repair estimates and/or bills: Car repair estimates are necessary to get your car fixed. However, estimates provided by your insurance company can sometimes be lower than you might have expected. If unsatisfied with an initial estimate, take the automobile to a certified mechanic for another estimate. Be sure to save all of the bills and repair paper work associated with the repair.

Out of pocket expenses: Keep records/receipts of everything you’ve paid for out-of-pocket relating to or as a result of injuries suffered in the accident. For example, heating pads, ace bandages, child-care expenses, cancellation of a vacation trip or event, clothing, taxi service or rental car, etc.

What You Need to Know:

Seek medical attention immediately after an accident!

Do not admit fault immediately after the accident.

Diligently follow through with all medical treatments.

Do not answer any questions from the other side’s insurance company or attorney or sign any forms without approval from your attorney.

Do not settle your case until all necessary medical expenses, present and future, are known.

Keep copies of everything (all documents, bills, medical records, etc.).

Resources:

Free Advice Auto Insurance Center: Articles, FAQs, free quotes and research links.

Free Advice Auto Accident Law: Articles, state-specific auto accident and DUI information, and FAQs about auto accidents and the law.

Structured Settlements

A structured settlement is an agreement to pay out money owed from the settlement of a lawsuit in installments rather than one lump sum. Structured settlements usually involve large settlements and are typically created through the purchase of one or more annuities. The payments can be structured in any way the parties choose (monthly, yearly, quarterly, etc.). If you are involved in a car accident and are entitled to a large recovery, you might consider a structured settlement as the vehicle for payment. Structured settlements are also commonly used in workers’ compensation claims.

Structured Settlement Advantages

Why take a settlement in payments rather than one lump sum? There are several advantages to structured settlements. First, there are tax advantages. If properly set up, a structured settlement can reduce your tax liability or, in some cases, come tax-free. Second, receiving a settlement over time can ensure that the money you need will be there when you need it. Receiving one lump sum up front creates the risk of spending it all too quickly, leaving nothing left for a time when you may really need it for further treatment or to purchase new medical equipment. A structured settlement ensures you will not spend it all at once.

Structured Settlement Disadvantages

While some people may find it helpful to have the money metered out over time rather than risk spending the whole amount too quickly, others may feel overly burdened by the periodic payments that leave little room for flexible spending. Still others may find that taking the money up-front and investing it themselves will yield higher long-term returns over the annuities used in a structured settlement. Once in a structured settlement, some people opt to sell their settlement for a lump sum. There are many potential settlement buyers out there. If you have a structured settlement, you may have already been approached by a potential purchaser. There are a number of important things to know before considering the sale of a settlement.

Selling Your Structured Settlement

The sale of a structured settlement is not quite as easy as it may seem. First, you must check your state’s laws. As of March 2006, forty-four states and the federal government now have enacted structured settlement protection laws that require court approval for the sale and detailed financial and legal disclosures be given the seller before the transaction can be made. Under federal law, the purchaser of a structured settlement may be subject to a 40% excise tax if they did not comply with state laws. These laws are in place to protect structured settlement owners from fraud or abuse and are designed to make sure a settlement owner gets a fair price. The following states have enacted structured settlement protection laws:

What You Can Expect to Recover for Property Damage in Auto Accident Cases

In the car insurance world, property damage is defined as damage to your vehicle (car, truck, SUV, etc.). The types of coverage that will pay for damage to your vehicle include collision, comprehensive, and sometimes, depending on the company, uninsured/underinsured motorist.

What You Can Recover

When your car is damaged in an automobile accident and you have coverage, your insurance company will either pay for repairs or “total” your vehicle. When an insurance company totals a vehicle, the vehicle is considered a complete loss and the insured is paid cash value for the vehicle. The actual cash value (ACV) is the cost to replace the vehicle with a vehicle that is of like kind and quality, etc., subtracting an amount that accounts for the totaled vehicle’s depreciation (age and wear and tear).

While it may seem like your car would have to be a complete wreck, a smoking heap, to be deemed totaled, in fact, this determination is made more on the basis of the cost of repair and the car’s worth. A car will be considered totaled if the repair costs exceed a certain percentage of the car’s worth. The percentage will differ from company to company, but usually ranges from 51% to 90%.

What To Do If You Disagree That Your Car is Totaled

Once your car is deemed totaled and you are paid actual cash value for it, your car is taken to a salvage yard where it is auctioned off. Then it is usually chopped up for parts. If you love your car, actual cash value may not seem like an equitable deal to you. When you sign a contract with your insurer, it is agreed between the two of you that the insurer will not have to pay out more than the car is actually worth. But the insurer also agrees to make you whole by placing you in the same spot (relatively speaking) as you would have been without the accident.

If you really want to keep your car, you can take the actual cash value from the insurance company, minus deductibles (in your policy) and minus what the insurer would have gotten at the salvage yard. You can then keep your car and make the repairs yourself. If you decide on this route, let the claims adjuster know right away. Once the car has gone to auction, it is much harder to get it back.

Car Accidents - Who is at Fault?

Fault is one of the biggest, if not THE most critical element, in any car accident claim. The person at fault is the person whose negligence caused the accident, and that is the person who typically must pay for the damage caused by his or her negligence. If the circumstances surrounding your accident make it clear that one person was clearly at fault, then read no further! One of the related articles listed below should be your next stop. If, however, liability is not entirely clear or if there is shared fault, then fault is apportioned between the persons determined by the specifics of the law in your state (see below) on comparative or contributory negligence. When liability is shared in an auto accident, it is the insurer’s turn to determine the relative percentages of fault of the parties involved.

What is Comparative or Contributory Negligence?

Historically, if two people were involved in an accident and the injured party was even the slightest bit at fault, he or she would not be entitled to recover anything for his/her injuries or losses. This way of determining damages is known in legal circles as pure contributory negligence. For example, say Luther and Martin were involved in an accident. Luther hit Martin’s car while making a left turn onto a 2-lane street at night. Luther didn’t see Martin’s car because even though it was night time (and a dark one at that), Martin was not driving with his headlights on. Under a pure contributory negligence theory, Martin could not recover damages for his injuries because he was partially at fault for the accident. Sound pretty harsh? Actually, some states still follow this rule (Alabama, District of Columbia, Maryland, North Carolina and Virginia).

But most states now use some proportional form of comparative negligence that allows an injured party to recover some damages for his or her injuries, even if he or she was partially at fault. There are currently three variations: Pure comparative fault; proportional comparative fault at 51%; proportional comparative fault at 50%.

Pure Comparative Fault

In states that have adopted pure comparative fault as a measure of damages, if an injured person is partially at fault for causing his own injuries, his damages are reduced by the percentage of his fault. For example, say Michelle was injured in a car accident for which she was 80% at fault. Damages for her injury amount to $10,000. Michelle will be entitled to recover $2,000 for her injuries, that is, $10,000 less 80% or $8,000 for her percentage of fault. States: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota and Washington.

Proportional Comparative Fault at 51%

The states that have adopted proportional comparative fault bar recovery if you are more than 51% at fault for the accident. In other words, you cannot file a liability claim and lawsuit against the other driver’s negligence if you were more than 51% at fault. For example, Dennis hit Teri’s car while driving in excess of 25 miles per hour over the speed limit while Teri was attempting to cross the road. Even though Teri was partially at fault for not waiting until the road was completely clear before crossing, the insurance company allocated fault to Dennis at 60% due to his excessive speed. Even though Dennis suffered a broken arm from the accident, he is not entitled to recover for his injury due to the fact that he was more than 51% at fault for the accident. States: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming.

Proportional Comparative Fault at 50%

In states that have adopted the 50% bar standard in resolving auto accident claims, an injured person that is less than 50% at fault for the accident is entitled to compensation. If the injured party is 50% or more at fault, he or she is not entitled to recovery for the injury. For example, Richard and Susan accidentally hit each others’ cars while backing out of their parking spaces at exactly the same time. Both were not looking carefully enough when they backed up, and so both were deemed equally at fault for the accident. Neither one will be entitled to damages since both were 50% at fault for the accident. States: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia.

How is Percentage of Fault Determined?

After an accident, it is the job of the insurance company claims adjuster to assign the relative degrees of fault based on the circumstances surrounding the accident. There is no secret mathematical formula for determining percentages of fault in accident injuries. You and the claims adjuster will negotiate and come to some agreement as to what, if any, your allocated fault is. Here is where an experienced personal injury attorney can come in handy. He or she will know how to assess the accident and advocate for the lowest percentage of fault on your behalf. If you and the insurance adjuster reach an impasse, a court of law is ultimately your next step to resolve the issue of fault.

Fault and Car Insurance

Insurance companies often offer extra coverage/protection (for extra money) to help pay for property damage and/or personal injury and medical expenses regardless of fault. So if you are injured in an accident that was mostly your fault and you are not entitled by law to compensation from the other person’s insurance, but you have extra coverage under your own policy, your insurance company will pay for your injuries. This extra coverage is called PIP (personal injury protection) or No Fault coverage. Under this scenario, you would file a liability claim with your own insurance carrier for medical bills and lost income, up to a specified maximum, without any discussion or disagreement about the circumstances of the accident and who was at fault. Whether you can file for further expenses against the other person who was at fault in the accident depends on your state’s laws. In many states, Uninsured/Underinsured coverage is required. This provides coverage for damages resulting from an accident with someone who either has no insurance or does not have enough insurance to cover your expenses. It also protects you if the other person flees the scene after the accident or is a driver of a stolen car.

Beyond the damages suffered, the degree of fault is probably the most important factor in determining how much you may finally recover for your accident injury. In most cases, both you and the insurance company will know (by the circumstances surrounding the accident) the level of fault for both parties. Was the other party completely at fault? Mostly at fault? Or only a little at fault? If you are in a comparative fault state, an adjuster will reduce your recovery amount by your percentage of comparative fault. If you were only 10% at fault, your damages total will be reduced by 10%. Your recovery will not be reduced by any amount if the accident was clearly someone else’s fault.

Anatomy of an Auto Accident Insurance Claim

An auto accident insurance claim always begins with an accident. If you are involved in a car accident, there are some very important things you should do at the accident site to the extent you can. At the first opportunity, you should report the accident with your insurance carrier and begin the process of filing a claim. After you have submitted your claim, a claims adjuster (someone who works for the insurance company and deals exclusively with claims) will either call, write or email you regarding your claim. He or she will then look at your policy to determine the types of coverage you have, deductibles, and any coverage limits that may affect your claim.

If your claim is simple (i.e., fault is not at issue, the damage was minimal, and little or no medical treatment was necessary), the adjuster may have you get an estimate for repairs and then send you a check. You will have to fill out some paperwork, but you may not have to meet with the adjuster in person. If your claim is more complicated (for example, liability is unclear, you do not have enough coverage in your policy, or you do not agree with your adjuster’s settlement offer), then the negotiation process will take longer.

Investigating Your Automobile Accident Claim

In relatively complicated injury accident claims, adjusters typically must do some investigation in order to adequately assess the insurance company’s liability. The adjuster will comb through your policy and possibly contact witnesses to the accident, the other party to the accident, look at the police report if there is one, take photographs of the damages and scene of the accident and generally investigate your medical expenses by sending out requests to your medical providers for information regarding your treatment. If you are seeking to have medical bills covered, the adjuster will send you a medical authorization form for the release of your medical records.

The Settlement Offer

Once the adjuster has investigated your claim and looked at your policy, he or she will typically send you a settlement offer. The settlement offer will tell you what the insurance company is willing to pay on your claim. It could be all, it could be part, it could be none. This opening offer is typically on the low side. After all, the adjuster’s job is to save his or her employer money. But the adjuster also wants to close a case and thus is typically allowed a settlement range that offers room for negotiation. See When the Adjuster’s Settlement Offer is Too Low.

The Demand Letter

If you are confident about how much you think your claim is worth, you can preempt the adjuster’s settlement offer with your own settlement proposal (demand letter). Your demand letter would outline fault (if an issue), damages and ask for a certain amount to settle your claim.

So, should you make a demand first, or wait for the offer? See Making a Demand or Waiting for a Car Insurance Offer and Settling Your Car Insurance Claim: How to Write a Demand Letter.

Negotiating with the Claims Adjuster

If you’ve already received an opening offer from the adjuster, keep in mind that opening offers for settlement are almost always on the low side. Whether or not you think the offer is reasonable, read When the Adjuster’s Settlement Offer is Too Low for more information on how to evaluate that opening offer. Then, unless you’re willing to go with that opening offer (knowing that it’s too low) without an argument, you will ultimately need to negotiate with the adjuster for a higher settlement. See Negotiating Your Car Insurance Settlement.

If Your Auto Accident Claim is Denied

If your claim is denied in whole or in part, there could be many legitimate and reasonable reasons. Most have to do with limits in your coverage. You can check the denial letter against your policy to see if the denial seems legitimate or not. If you still think your claim was unfairly denied, read When Your Car Insurance Claim is Denied for more on what you can do next. But whatever you decide to do, don’t wait too long to do it. If you sit on your claim for too long, you may lose the right to sue in court to get your recovery. Each state has a statute of limitations (a time limit for filing a lawsuit in court). In most states, the statute of limitations for personal injury claims is 2 or 3 years, but could be shorter or longer. An attorney will be able to advise you.

Car Insurance and Auto Accidents: Are You Covered?

Insurance companies offer a variety of auto insurance packages, all providing varying levels of coverage. Most states require motorists have some minimal amount of insurance. Keep in mind, however, that purchasing just the minimum may be risky as minimal coverage may not be adequate in the event of a serious bodily injury accident.

Bare Bones Basic: Liability Insurance

Liability insurance is required by law in almost all states. It will pay for the property damage and personal injury expenses of others when you are at fault for an accident, up to the limits specified in your own particular policy. This coverage includes your legal bills. The bodily injury portion of the coverage includes medical expenses and lost wages. The property damage portion covers repair or replacement of items damaged as a result of the accident, your car not included (see Collision, below). The vast majority of states require motorists have at least liability insurance, and most require a minimum amount. Check out your state’s insurance department to find out your state’s minimum.

How About Me? Collision Insurance

Regardless of fault, collision insurance will cover damage to your vehicle, subject to any deductible. Period. Your insurance company will either pay for repairs or “total” your car (declare your car a total loss). (Alternatively, you can file a claim with the other person’s insurance company for the car’s repair and sidestep the deductible on your own policy.) If the insurance company totals your car, you will most likely get the actual cash value for the car, as opposed to the replacement cost. The replacement cost is the cost of replacing or repairing your vehicle with materials that are of similar type and quality without deducting for depreciation. Depreciation is the decrease in value of your vehicle due to age or wear and tear. Actual cash value is usually figured as the replacement cost minus the depreciation. Collision coverage can be expensive. You can consider increasing your deductible to lower your premium.

Beyond Car Accidents: Comprehensive Insurance

Comprehensive covers damage that occurs as a result of circumstances other than vehicle accidents. Comprehensive will cover loss due to theft, fire, vandalism, and natural disasters. There is usually a deductible and the insurance company will not likely pay more than the Kelley Blue Book value if your car is wrecked. Of course, if you have a beater for a car and the comprehensive coverage costs more than what the car is actually worth, then don’t even bother buying it.

Medical, PIP and No-Fault

Medical payments coverage pays for your medical expenses and those of your passenger in the event of an accident, regardless of who was at fault. This coverage applies when you are driving your vehicle or someone else’s vehicle with their permission. You and your family members are covered if you are injured as pedestrians. Be aware that some insurance policies obligate you to repay any benefits received later from the other driver or car owner. Do you need medical payments coverage when you are also covered by your health plan? Click here for an article on that subject. Personal injury protection (PIP) and No-Fault coverages are typically expanded forms of medical payment protection. Some states require these, in others it is optional. Some features include coverage for lost wages and child care.

Uninsured/Underinsured Coverage

Uninsured/Underinsured coverage pays for your injuries and possibly property damage when you are involved in an accident with someone who is at fault and has no liability insurance, or just has the bare bones limits of liability insurance. Some states require motorists to have this coverage.

Supplemental Insurance

These are essentially add-ons to your basic insurance policy. You can add on coverage for rentals, repairs or towing which could save you money in the long run.