José M. Bautista

Ten Common Questions in Personal Injury Cases

1. What is Comparative Fault?

In a comparative negligencesystem, the injured party may still recover some of his damages even if he was partially to blame for causing the accident. His financial recovery is simply reduced. For example: John sues Jane for his injuries in an auto accident. The jury finds that John had $100,000 in damages, but they also find that he was 75% at fault. While the verdict may be for John, his recovery will be reduced by 75%. In the end, Jane will only have to pay $25,000.

2. How Do I Select an Attorney?

The selection of an attorney is an important one. It should not be taken lightly. As other professions, attorneys specialize. It is probably not a good idea to retain a bankruptcy or a real estate attorney to try your auto accident case. You want someone with experience in civil trial work. Even criminal trial attorneys won’t do. Funding is another consideration. Your attorney should be able to capitalize the case, which may get expensive if the accident facts or your injuries are complex and you need experts.

3. What Information will an Attorney Need?

First, the attorney will need your name, address, phone number, date of birth, occupation. He will also need information about the accident. Who was involved? What happened? When and where did it happen? Were there any witnesses? Finally, he will need information about your injuries and the doctors and hospitals that treated you. That should give him enough information to get police report and your medical records and to give an initial evaluation of the case.

4. Should I sign a Release?

You should not sign any release provided by the other person or the other person’s insurance company without consulting an attorney. If it is a records authorization allowing the other side to examine your records, e.g. medical records, you could be allowing them to uncover private information that is unrelated to the accident. Even worse, you could be signing a liability release and releasing the other person from all responsibility for your accident.

5. Should I see a Doctor?

It is a very good idea to see a doctor immediately if you are injured in any way. Do not make any general comments at the scene about your physical condition other than to describe your symptoms to medical personnel. If asked, “Are you all right?” simply respond “I do not know, I will have to wait and see.” Because you may not know the extent of any injuries it is best to get checked out, preferably in the emergency room or if not, within a few days of the accident. The more time that passes between the accident and any medical care, the less likely your doctor will attribute your complaints to the accident, a crucial issue. If your symptoms persist despite receiving medical care, it is also very important that you see the right doctor – a specialist for the type of injury you have. You can ask the emergency room physician, health care provider or your family doctor for a referral. Be sure to tell any doctor you see that you were involved in an automobile accident and describe as accurately as possible what happened to you physically and how you have felt since then. However, do not discuss any legal claims you might have with your physician.

6. How Do My Medical Bills Get Paid?

After an auto accident, the opposing insurance company is not likely to begin paying your medical bills. Payments are usually denied or delayed. You should immediately direct your medical bills for payment by your own personal healthcare provider. Ultimately, it is the responsibility of the negligent driver and his or her insurance company to pay the costs associated with your injuries. Sending the medical bills to your health insurance provider will not limit the compensation that you can recover for your claim. You can still pursue a lawsuit against the other driver. Assuming you obtain a favorable judgment, you can then get his insurance money and possibly garnish his wages if the insurance money was not enough.

7. Can I sue the other person’s Insurance Company along with that person?

Generally no, an injured party cannot proceed in a direct actionagainst the other person’s insurance company. The injured party has to sue the other person and establish that person’s liability first. The insurance company has no responsibility to the injured party unless the insured is liable.

8. What is “Bad Faith?”

First-party bad faith involves only two parties, the insured and the insurer. There is a contractual relationship between the insurer and the insured in which the insurer has a good faith duty not to unreasonably withhold payment due to the insured under the policy. This type of bad faith claim occurs when the insurer refuses to pay a claim the insured has made and that is owed to the insured under the policy. First-party bad faith claims occur because there is a dispute over whether the particular loss is covered by the policy the insured holds. Usually the insured sends in a claim believing it to be covered and the insurance company refuses to pay for the loss because it claims it is not covered by the insurance policy. The claim therefore centers on the correctness and reasonableness of the insurance company’s determination that there is no coverage under the policy.

9. How does bad faith affect my personal injury case?

If you are the victim, you are more likely to encounter “third party” bad faith. Third party bad faith essentially involves three parties; the injured party, the insured and the insurer. Third party bad faith deals with liability insurance. A bad faith claim is made when the insurer either wrongfully refuses to defend a lawsuit against the insured or when the insurer defends the insured in the lawsuit but fails to handle the suit with the insured’s interest in mind and a settlement, judgment or verdict is made in excess of the policy limits. The most common bad faith claim arises when the insurer fails to settle a (your) claim against an insured (e.g. the driver who rear-ended your car) within the applicable policy limits resulting in a judgment or verdict against the insured for punitive damages or for an amount in excess of the policy limits.

10. What is a statute of limitation and how does it work?

A statute is limitation tells you the time limit after an accident when you can file your lawsuit. The time varies depending on the type of claim and the state that you’re in. Generally, after the statute expires, you’re prohibited from filing the lawsuit.