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Frequently Asked Questions
Regarding Personal Injury Claims |
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IMPORTANT: My answers to these questions and everything else in this Website is NOT intended to and does not constitute legal advice. It is intended for general informational purposes only, and is NOT a substitute for consulting an attorney.
Q: Can I handle my personal injury case myself ? (i.e., why should I pay an attorney?)
A: Obviously, it is ideal for an injured claimant if he or she can negotiate a fair settlement without having to hire an attorney. It avoids the difficult task of finding a good attorney, and also saves attorney fees. It does not make economic sense to hire an attorney if you will end up with less money in your pocket than you would have received if you had handled the case yourself. (However, you do need to consider the value of your time spent in fighting the insurance company. If you end up with the same amount of money by hiring an attorney, but your attorney did all the work, you saved yourself a lot of your valuable time, energy and hassle.)
I advise clients that if the amount in controversy is less than the jurisdictional monetary limits for Small Claims Court in their county (generally $5,000), it is my opinion that they are better off trying to settle the case themselves. I rarely take such cases unless a friend or former client asks me to handle it as a favor to them. Insurance companies generally have a financial interest in settling the smaller claims in order to avoid paying hourly defense attorney's fees that may exceed the value of the case. However, the more the value of a case exceeds $5,000, the more difficult it is to convince an insurance company to pay the full value of the case. Many people are surprised to learn insurance companies often put up a nasty and bitter fight challenging seemingly valid personal injury claims.
One problem with attempting to settle the case yourself is determining a reasonable value for the case. For small "fender benders" that cause a minor sprain/strain which resolves in a few months, rarely do insurance companies offer more than a few thousand dollars. However, I have had clients who were involved in extremely low impact collisions or thought they had relatively minor injuries, and they eventually ended up with large recoveries. In one case, my client said he thought he would receive a few thousand dollars for his case, and was wondering if the case was too small for me to handle. After he obtained the proper medical tests and I worked the case through the third party claim and then the underinsured motorist claim, we eventually settled his case for $75,000! (See Some Examples of Cases That I Have Handled, Arney v. Banks - Click Here) Another client suffered a neck whiplash in a glancing sideswipe collision, and although she developed migraine headaches, that was her only injury. She did not have high expectations, and was pleasantly surprised (to say the least) when I was able to obtain $100,000 for her. (See E.C. v. Farmers Insurance Group - Click Here)
Another client was given only $750 by her own insurance company, who told her they were closing her file, and she called me three years after the accident to inquire whether she was entitled to anything else. After I found an exception to the one year statute of limitations and battled my client's insurance company for nearly a year, I was able to obtain a $100,000 settlement for her. She received an additional $175,000 in her bad faith case against her insurance company for the way they handled her claim. (See B.A. v. State Farm - Click Here) It would have been a horrible injustice if she would have given in to her insurance company for only $750 and had never called me. Obviously, even after paying attorneys fees, all these clients ended up with FAR MORE MONEY in their pockets by hiring me rather than handling it themselves, not to mention saving the time, energy and stress of fighting with much more experienced insurance companies.
Even if a claimant could somehow accurately assess the true value of their case, the insurance company does not feel any pressure to offer the full amount in settlement, since they are not worried that a claimant will take the case to trial themselves without an attorney. Since most non-attorneys have no idea how to evaluate a case, they do not have any bargaining leverage with an insurance adjuster. Insurance adjusters are generally very experienced and handle hundreds of claims, so they have a tremendous advantage in negotiations. Insurance companies have no incentive to offer an unrepresented personal injury claimant anywhere near what a case is worth. Offering the full value of a case to an unrepresented claimant is almost like throwing money away. With no threat of a lawsuit from an attorney who "knows the ropes," insurance companies have nothing to lose by "low-balling" an unrepresented claimant.
Even if you do have an attorney, you need to make sure that he or she has the dedication, skill, and personality to both accurately assess the value of the case and then obtain a fair amount. Many attorneys with whom I discuss cases tell me I will never get more than a certain amount for a case, and then are very surprised when I ultimately recover double or triple that amount.
If it takes a good attorney a lot of time and hard work to evaluate a larger case and then obtain a full and fair settlement, you can imagine the odds of obtaining that amount yourself. If you handle a larger case yourself, you may save 33-1/3% attorneys' fees, but you may cost yourself much more money (100%, 200%, 500% or more) in total recovery. There are many ways you can lose money by handling a larger case yourself - not realizing what type of injuries you have, not being aware of all the types of damages you can recover, getting tripped up by insurance issues, missing possible defendants, not having the leverage to persuade the insurance company to pay the full amount, etc. The more the value of your case exceeds $5,000, the more a good attorney should be able to recover for you, even after considering attorneys fees.
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Q: How long do I have to settle my case or file a lawsuit? (i.e., what is the statute of limitations?)
A: Generally, California law provides that for incidents which occured after January 2003, a plaintiff has two years from the date of an accident to settle their case or file a lawsuit. If you do not file a lawsuit within two years of the date of the accident, you will probably lose all your rights to recover any damages! However, this deadline, known as the statute of limitations, can vary in certain situations. For example, if a governmental entity (such as a city, BART, an A.C. Transit bus, a public school, a public hospital, etc.) is involved, you are required to file a claim (not a lawsuit) with the governmental entity within six (6) months of the date of the injury. Your attorney can file this claim for you, or you can do it yourself. However, if you file it yourself and leave out certain necessary information, or do not properly characterize the governmental entity's liability, the governmental entity may later argue that you did not make a proper claim and have your claim dismissed! In addition, the statute of limitations for filing a lawsuit against the governmental entity varies depending upon the manner in which they reject the claim (which they virtually always do). Thus, if you have a significant injury, you may be taking a grave risk by trying to represent yourself in order to save attorney fees.
Generally, the courts are very strict regarding the statute of limitations, and if you have not resolved your claim or filed a lawsuit before the statute of limitations expires, you lose your right to recover any damages. There are a few exceptions where the statute of limitations is tolled (i.e., extended beyond a year), such as if you are incapacitated (for example, in a coma), or if a defendant is out of the state for any period of time before the statute of limitations expires. For minors, the statute of limitations does not begin until their 18th birthday, so the statute of limitations would not expire until they are 19 years old. Nonetheless, it is extremely dangerous to take any risk with the statute of limitations, and you should consult an attorney as soon as you decide that you will be pursuing a claim for personal injury.
Even if you believe that the statute of limitations has already expired, you should still consult an attorney to determine if there are any exceptions to the statute of limitations, rather than assume that you are completely out of luck. For instance, uninsured motorist, medical malpractice and product liability claims have more exceptions to the statute of limitations than do third party auto accident cases. Thus, there is somewhat more likelihood that you can still file a claim more than one year after you are injured by an uninsured motorist, medical malpractice or a defective product. Many people attempt to settle a case themselves, and after they are jerked around by an insurance adjuster for eleven months, they call an attorney shortly before the statute of limitations is going to expire. Many attorneys (including myself) are extremely reluctant to become involved in a case in which the statute of limitations is about to expire (unless there are major injuries involved). So, if you are going to have an attorney handle your case, the earlier you consult an attorney the better.
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Q: What am I entitled to recover?
A: California law provides that a person is entitled to recover all damages arising from bodily injury or property damage proximately caused by the negligent conduct of another person. You are also entitled to recover damages arising out of the intentional conduct of someone else. However, since insurance does not pay for damages resulting from someone's intentional conduct, and thus you would have to recover such damages from their personal assets. One type of damages is economic damages, and examples include medical bills, wage loss, the reasonable value of gratuitous home health care services, and loss of use of your vehicle.
Examples of non-economic (general) damages include pain and suffering, loss of range of motion, loss of consortium, loss of enjoyment of activities and loss of enjoyment of one's profession. Even though economic damages are much easier to quantify than general damages, insurance companies still often challenge claims for economic damages. Non-economic (general) damages are more difficult to quantify than economic damages. Many factors go into calculating non-economic damages, and it is more of an art form than a science. After many years of handling cases for plaintiffs and defendants, as well as reviewing jury verdicts from cases all over California, I have developed a good "feel" for estimating general damages depending on the county in which your case is venued the type and permanency of your injury, your medical treatment, age, sex, occupation, activity level, etc.
For a minor "fender bender" which causes a sprain/strain, the insurance company will usually reimburse you for your medical bills (reduced by any percentage of comparative fault on your part by a party not in the action), and maybe throw in a few thousand dollars for all your general damages (i.e., pain and suffering, etc.) I had a very low impact "fender bender" where my client bumped her knee on the dashboard. She eventually had arthroscopic surgery on her knee, and had incurred approximately $15,000 in medical bills. I was able to obtain $56,500 in general damages in addition to all her medical bills. I arbitrated another case in which my client had a very serious heel fracture, but less than $10,000 in medical bills, and we received a binding arbitration award in excess of a quarter-million dollars, including $40,000 for his wife's loss of consortium. Every case is unique, and the more serious your injury, the more you need a legal professional to assist you in properly evaluating your damages and in convincing the insurance company (or jury) to give you your just compensation.
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Q: Should I use health insurance or automobile insurance Med-Pay to pay for my medical bills?
A: Many accident victims do not think about how their medical bills are paid until it is too late because they are so devastated by their injuries and trying to get their life back together. Although many attorneys do not bother discussing the issue with their clients, how your medical bills are paid can affect how much money you end up with in your pocket from your case recovery. Generally, it is better to have your health insurance pay your medical bills rather than using the Medical Payments coverage from your automobile insurance. This is because I can usually negotiate a reduction of the amount that you would have to reimburse your health insurance carrier, whereas most automobile insurance policies require the full amount of their Med Pay payments to be reimbursed from the proceeds of your recovery.
However, if your health insurance has a large deductible or co-payment, it may be better to use your Med-Pay coverage. In addition, some insurance carriers do not seek reimbursement of Med-Pay payments, and in that situation it is more advantageous for you economically to have your medical bills paid by your Med-Pay coverage. Please feel free to call my office (at no charge, of course) if you would like to discuss this issue. In one case, my client had a bill for nearly $60,000 with Medi-Care, and I was able to convince the Federal government to completely eliminate the $60,000 debt!
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Q: What if the person who hit me does not have insurance?
A: Most people think that if the person who caused the accident (or who is at least partially at fault) does not have insurance, that they are out of luck as far as obtaining any recovery for their injuries and damages. You can try to obtain to compensation from their personal assets, but it is far easier to make an Uninsured Motorist ("UM") claim to your own insurance company. As long as you have adequate UM limits, under current California law it is often better to have a UM claim than a third party claim against the adverse driver. Most people think their insurance premiums will increase if they make a UM claim, but your rates should NOT increase if the collision was not your fault.
IT IS MY OPINION THAT EVERYONE SHOULD HAVE AS MUCH UNINSURED MOTORIST COVERAGE AS THEY CAN POSSIBLY AFFORD! Uninsured motorist coverage is very inexpensive compared to liability coverage, and I advise everyone I know to have at least $100,000 coverage, and preferably $250,000 or $500,000. If you have uninsured motorist coverage, your own insurance company is required to pay you all the damages that you would be able to recover from the adverse driver if he or she had insurance. If the adverse driver does not have enough automobile liability insurance to cover all your damages (many people have only $15,000 liability insurance coverage, which is all that is required by the State of California), after you obtain all of their policy limits, you can then make an underinsured motorist claim to your own insurance company. Uninsured and underinsured motorist claims do not proceed through the court system, but are governed by completely separate provisions of the California Insurance Code. Because the Insurance Code provisions are somewhat complicated and at times contradictory, there are many pitfalls and traps that even attorneys can get caught in when pursuing these types of claims. For more information, please see my article elsewhere in this Website on uninsured and underinsured motorist claims, which I had published in Forum, the state legal magazine for plaintiffs' attorneys. - Click Here)
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Q: What if I did not have automobile insurance at the time that I was involved in an accident?
A: Unfortunately, if you did not have the required minimum $15,000 automobile liability policy limits at the time that you were involved in a motor vehicle accident, your rights to recover damages are severely restricted by Proposition 213. In November, 1996, Prop 213 was passed into law by the voters of California. It provides that fleeing felons, drunk drivers, and uninsured motorists are not entitled to recover any non-economic damages (such as for pain and suffering) resulting from an automobile accident, even if another driver is completely at fault for causing your accident. However, Prop 213 only applies to drivers, and thus does NOT apply to passengers.
Voters had strong feelings about denying recovery to fleeing felons and drunk drivers, but apparently did not know (or did not care) that uninsured motorists were also denied their rights to recover non-economic damages. Several consumer groups challenged Prop 213 as unconstitutional in the courts, but all the initial attempts to overturn it have been denied. Efforts to overturn it continue, however, and if you are injured in an accident and did not have automobile insurance, you should contact an attorney to determine the current status of Prop 213. It is currently unclear whether Proposition 213 applies to product liability cases for defective automobiles, dangerous highway conditions, and certain other types of claims. Please feel free to call me if you have any questions regarding whether Prop 213 applies to your case.
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Q: Is there an explosion of personal injury cases in California?
A: Unfortunately, many jurors are turned off to personal injury cases, and are very cynical about claims for pain and suffering. A major reason for this bias seems to be that they believe (incorrectly) that there is an explosion of personal injury cases in California, and that this imaginary "explosion" of injury cases is causing insurance rates to skyrocket. In reality, the number of personal injury cases has sharply declined in the last decade or more, and it is the criminal cases and lawsuits between big businesses that have sharply increased. The California Judicial Council, which is the state governmental body that keeps track of lawsuit filings, noted a 48% drop in filings of auto accident lawsuits in the 7 years from 1988-1995.
Insurance companies have done such a great job of creating a myth of a litigation explosion that the vast majority of the general public believes it, sometimes even after they are informed of the California Judicial Council statistics. Large verdicts are highly publicized for their "shock value," usually without reporting all the crucial facts that the jury which rendered the verdict had carefully considered. Unfortunately, the many cases where people are brow-beaten by much more powerful insurance companies into accepting unreasonably low sums for legitimate and significant injuries receives very little, if any, publicity. See my article on uninsured motorist cases elsewhere in this Website regarding a case in which my client's own insurance company tried, among many other things, to pressure her to accept $750 for a case which eventually settled for $100,000 after I was retained and battled the insurance company for nearly a year.
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