What Every Injury Claim Must Have

First: liability

The first issue your lawyer must consider in every auto accident claim is whether it can be proven the other party was at fault. Lawyers call this establishing liability.

Legally, it means the other party owed a duty which they breached, such as driving at a reasonable speed, maintaining control of their car, stopping when required, or yielding the right-of-way. You may be thinking this should be quite obvious. Many times it is. But many times it is not so obvious. What about two cars colliding in an intersection with both drivers claiming to have had a green light? Many multi-car rear end collisions involve proving which car caused the first impact. For example, did the second car in line cause the accident by striking the first car (car number two is liable), or did the third car hit the second car, driving it into the first car (car number three is liable). The physical evidence of how the accident occurred, along with statements of the most credible witnesses, will control the question of proving liability.

In evaluating the issue of liability, the insurance company will look for every opportunity to argue the injured party also was at least partially at fault in the accident. This is known as arguing comparative fault. Florida is a comparative fault state, which means when an accident occurs involving two cars, it is possible that both cars may be found responsible (or be held liable) for the accident. Every insurance adjuster evaluates every accident with the goal of attempting to place as much blame as possible on the injured party for any fault they may have had in causing the accident.

Why is this important to you?

The evaluation process requires a careful examination of the facts to determine whether the insurance company will be successful in proving whether you are also at fault. They do not have to place the fault entirely on you. Any amount of comparative fault they can successfully prove will reduce the amount they you owe in compensation . For instance, if the at fault driver turned into the path of your oncoming vehicle, they would be liable for damages. However, if their insurance company could successfully prove you were also responsible for some percentage of fault in the accident, due to unlawful speed or some other factor, any percentage of your fault would reduce your settlement or verdict by that percentage. Proving comparative fault by you of twenty five percent in causing the accident would reduce your settlement or verdict by twenty five percent. Any combination of fault can be made by a jury, if the evidence shows that both parties were at fault.

The issue of evaluating exactly what each driver did leading up to a crash is extremely important. Your lawyer needs to question you closely and you need to be honest in telling your lawyer exactly what happened. Otherwise, both you and your lawyer may be caught off guard later, hurting your case. Rest assured, the other driver’s insurance company is going to look for every argument you were also at fault. If they are successful in making that argument, it will save them money.

Second: causation

The second issue which must be proven is that someone’s negligent act caused your injury. This is referred to as causation. Causation can be straightforward, such as when a pedestrian’s leg is broken by a car running them down, or when your car is severely damaged in a rear end collision which causes you neck or back injuries. However, there are two major areas involving auto automobile accidents where causation issues frequently arise. The first is in rear end impact cases where there is no evidence of impact on your vehicle. Lawyers frequently see cases involving collisions resulting in absolutely no evidence of impact on the car occupied by the injured person. Commonly, complaints of neck and back injury result from such collisions involving minor soreness and soft tissue damage. Many insurance companies have set up special teams to handle the defense of claims involving little or no property damage. They are sometimes as MIST cases (minor impact soft tissue). They believe showing photographs of a car with no property damage will allow them to convince a jury the accident did not cause any injury claimed.

However, other accidents involving little or no property damage result in clear, objectively provable injuries, typically disk injuries of the neck or back. Many people are seriously injured in low-impact or low property damage collisions. Proving causation in these types of cases requires your lawyer to have a full understanding of the medical and engineering principles which will be argued by the insurance industry against you. This must be fully discussed with any lawyer you hire.

The second area in which causation issues may be argued by the insurance company typically arises if you have been injured in a prior accident or reported a prior injury, most commonly involving the back or neck. When the injury claimed in your current accident involves a part of the body which has been previously injured, or otherwise required medical treatment, you can expect the insurance company to question whether the accident caused the current injury or whether it simply aggravated a pre-existing condition. The insurance company will work very hard to find any such evidence. They have access to a medical claims database which often shows whether you have previously had medical claims paid. Armed with that information they will ask your lawyer for medical records from every provider they can locate in search of evidence of some pre-existing injury or condition to the same area of your body involved in the current accident. This requires your complete cooperation with your lawyer. The last thing you want in your claim is for your lawyer to be surprised with medical records produced by the insurance company revealing treatments or complaints of a pre-existing condition. You should fully discuss with your lawyer any prior accidents, particularly accidents in which you received any injury. You should also a carefully recall whether you have ever reported pain or discomfort to your doctor to any part of your body injured in your current accident. Your attorney will need a full understanding of these facts.

Third: damages

Once you and your lawyer consider liability and causation, the issue of damages must be evaluated. Damages include both tangible and intangible losses. Tangible losses are your financial losses, including wages, wage earning capacity, medical expenses which must be repaid to insurance companies and other third parties, including Medicare, Medicaid, VA and Worker’s Compensation insurance carriers, as well as unpaid medical expenses incurred and in those you more likely than not will need in the future. This will require your lawyer to have a full understanding of your medical treatment and any medical treatment your doctor believes you will more likely than not require in the future, together with the cost of such treatment. In proving any lost wages and wage earning capacity, your lawyer will need to obtain evidence of your earnings and evaluate whether an expert could be used to establish the likelihood that you will suffer a loss of your earning capacity in the future.

Fourth: insurance coverage

Finally, your lawyer must determine if the at fault party has the ability to pay the losses that you have suffered. This usually comes down to insurance coverage and investigation of the defendants assets, if necessary. Is the at fault party insured and what limits of insurance coverage are available to pay your losses? Are there other sources of insurance? Based on the circumstances of your case, your lawyer may be required to do one or more of the following in order to investigate coverage:

Determine whether the vehicle was owned by the driver or some other person, corporation or governmental entity;

Request and obtain sworn policy information from any insurance company providing coverage for the driver, the owner, and any other entity having legal responsibility for the vehicle, including any excess or umbrella insurance policy;

Request and obtain sworn policy information from your auto insurance company regarding any uninsured/underinsured motorist coverage available on your policy. If your insurance company maintains you rejected uninsured/underinsured motorist coverage on your policy, require them to produce any rejection form to make sure it complies with the requirements of Florida’s insurance laws.

Conduct an assets check of any assets owned by the owner, driver, or other entity legally responsible for the vehicle.

 
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By: James Dodson

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Attorney James W. Dodson is a Clearwater, Florida personal injury trial lawyer with over 20 years experience representing clients in all types of injury claims including vehicle accidents, fall cases and wrongful death. He is the author of three books offered FREE to consumers as a guide to dealing with accidents and insurance. Visit his website at JWDodsonLaw.com for FREE copies of these books, other articles, videos, news and commentary.